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LEGAL  PRINCIPLES 


OF 

PUBLIC  HEALTH 

ADMINISTRATION 


BY 

HENRY  BIXBY  HEMENWAY,  A.M.,  M.D. 

Fellow,  American  Academy  of  Medicine;  Fellow,  American  Medical  Asso- 
ciation; Member,  American  Public  Health  Association,  Member, 
American   Association   of  Railway   Surgeons;   Member, 
American    Statistical    Association;  etc.,   etc. 


INTRODUCTION    BY 

JOHN  HENRY  WIGMORE,  L.L.D. 

Dean,    Northwestern  University   Law  School;  Illinois  Commissioner  on 
Uniform  State  Laws,  etc. 


CHICAGO 

T.  H.  FLOOD  &  CO.,  Publishers 
1914 


Copyright  1914 

BY 
HENRY  BIXBY  HEMENWAY 


H?>7 


THIS   WORK 
IS  DEDICATED   TO 

JOHN  HENRY  WIGMORE 

WHO    ENCOURAGED    THE    AUTHOR    IN    ITS  PREPARATION 

MAY    IT    SERVE   TO    UNITE 

THE    MEMBERS    OP    THE    MEDICAL    AND    LEGAL    PROFESSIONS 

IN    THE    INTEREST    OP 

GOOD   GOVERNMENT 


111 


Digitized  by  the  Internet  Archive 

in  2010  with  funding  from 

Open  Knowledge  Commons 


http://www.archive.org/details/legalprinciplesoOOheme 


INTRODUCTION 


By  John  H.  Wigmore  * 

This  book  is  a  sign  and  a  product  of  the  times. 
Community  health  as  a  public  function  is  a  novel  in- 
stitution, scarcely  adult.  In  a  time  within  my  memory, 
the  only  law  that  one  heard  of  for  public  health  was 
the  quarantine  rule  that  ships  coming  up  the  bay  from 
a  plague-rumored  Oriental  port  must  lie  at  anchor  for 
forty  days,  detaining  all  their  passengers  and  crew 
on  board. 

It  is  modern  science  that  has  vastly  enlarged  the 
scope  of  modern  law.  We  have  found  that  the  scope 
of  measure  necessary  for  common  defence  calls  for 
this  enlargement  of  function. 

The  law  has  become  involved  in  the  necessities  of 
applied  science.  Is  it  yet  equal  to  the  task?  Will  old 
and  settled  principles  serve?  Do  the  new  measures 
call  merely  for  new  applications  of  old  principles,  or 
for  their  destruction  and  the  creation  of  new  ones  ?  Is  it 
merely  a  changed  phase  of  the  conflict  between  in- 
dividual liberty  and  general  welfare — between  execu- 
tive discretion  and  fixed  law, — between  officialism  and 
laissez  fairef  This  book  answers  these  great  ques- 
tions. 

The  three  typical  groups  of  legal  principles  in- 
volved   take   us    into    the   midst    of   common    law, 

i  Professor  of  Law  in  North-  missioner  on  Uniform  State  Laws, 
western   University;    Illinois  Com-       etc. 

V 


VI  PUBLIC    HEALTH    ADMINISTRATION 

statutes,  and  constitutions  alike.  One  question  is  the 
efficient  organization  of  executive  and  administrative 
officers  and  boards;  this  is  a  matter  of  improved 
statutory  framing.  Another  is  the  extent  of  the  lia- 
bility of  officers  in  the  use  of  their  powers;  this  harks 
back  to  great  common  law  principles.  And  another  is 
the  legislative  power  to  restrict  individual  liberty; 
this  involves  settled  constitutional  principles.  Around 
these  three  groups  cohere  a  host  of  minor  principles 
and  problems. 

The  last  generation  has  seen  a  slow  working  out  of 
these  new  applications  of  principles.  The  slowness  has 
been  worth  while;  because  science  itself  during  that 
period  has  forged  ahead  so  rapidly  that  the  law  could 
not  safely  have  fixed  itself  at  any  one  stage.  Now  that 
the  main  trend  of  scientific  demands  can  be  plainly 
seen  in  a  future  outline  of  some  permanence,  it  is  pos- 
sible to  analyze  the  conditions  to  which  the  law  will  be 
asked  to  adjust  itself. 

1  believe  that  on  the  whole  the  existing  principles  of 
law  will  be  found  adequate  for  just  demands.  The 
main  pre-requisite  for  that  adjustment  is  intelligent 
mutual  understanding.  Law  and  Science  must  be- 
come better  acquainted.  They  are  becoming  better 
acquainted;  witness  (as  a  single  example  only)  the 
superb  opinion  of  the  Chancery  Court  of  New  Jersey 
(by  Vice  Chancellor  Stevens)  in  the  litigation  over  the 
Jersey  City  water  supply.2  But  this  acquaintance 
must  extend  all  along  the  line.  Judges,  lawyers,  and 
health  officers  must  make  it  a  duty  to  become  familiar 
with  each  other's  everyday  principles  and  assumptions. 

2  Mayor      of     Jersey     City     y. 
Flynn,  74  X.  J.  Eq.   104. 


INTRODUCTION 


Vll 


This  book  does  that  service  to  both.  Its  author  is  a 
remarkable  instance  of  a  medical  practitioner  versed 
in  the  law.  His  experience  early  introduced  him  to  the 
problems  of  public  health  in  its  legal  aspects.3  His 
published  essays  have  shown  that  his  views  are  orig- 
inal, carefully  studied,  practical,  well-balanced,  and 
progressive.4     His  proposals  for  the  reorganization  of 


s  Dr.  Hemenway  's  professional 
record  is  thus  summarized: 
Northwestern  University,  A.  B. 
1879;  M.  D.  1881;  A.  M.  1882. 
Health  Officer,  City  of  Kalama- 
zoo, Michigan,  1884-5.  Secretary 
Kalamazoo  Board  of  U.  S.  Exam- 
ining Surgeons,  Jan.,  1887,  to 
Sept.,  1890.  Secretary  and  Li- 
brarian, Kalamazoo  Academy  of 
Medicine,  1883-90.  Vice-President, 
Michigan  State  Medical  Society, 
1886-7;  Treasurer  Michigan  State 
Medical  Society,  1887-90.  Member 
of  Finance  Committee,  Ninth 
International  Medical  Congress, 
1887.  Vice  President,  American 
Academy  of  Medicine,  1910-11. 
Acting  Professor  Preventive  Medi- 
cine, College  of  Physicians  and 
Surgeons,  Chicago,  1900. 

*  The  following  is  a  partial  list 
of  his  articles  on  topics  relating 
to  preventive  medicine  or  govern- 
mental   problems : 

' '  Diphtheria  in  Kalamazoo, 
1884."  (A  study  of  the  relation- 
ship of  sewage  and  water  supply 
to  the  disease.)  (Jour.  American 
Medical  Association,  Vol.  VI.,  p. 
225.) 

"The  Relationship  of  Atmos- 
pheric Conditions  to  Intermittent 
Fever."  (Jour.  A.  M.  A.,  June 
13,  1891,  Vol.  XVI.,  p.  848.) 

' '  Pharyngo-Mycosis.  "  (The  first 


recognition  of  the  Leptothryx  as 
cause  of  this  condition.)  (Jour,  of 
Laryngology,  Rhinology  and  Otol- 
ogy, London,  Feb.,  1892,  p.  53.) 

' '  The  Scarlet  Fever  Epidemic  of 
1907."  (Jour.  A.  M.  A.,  April  4, 
1908,  Vol.  L,  p.  1115.) 

"Principles  of  Therapy  under 
Modern  Biology."  (International 
Clinics,  Series  23,  Vol.  II,  p.  35.) 

"The  Relationship  of  Railway 
Corporations  to  Public  Health. ' ' 
(Railway  Surgical  Journal,  April, 
1912,  p.  332.) 

"The  Transportation  of  Con- 
sumptives. ' '  (Railway  Surgical 
Journal,  Feb.,   1914,  p.   197.) 

"Proposed  Legislation  Relating 
to  the  Medical  Portion  of  the  Pen- 
sion Bureau. ' '  (The  Medical 
News,  Feb.   1,   1890.) 

' '  The  Limitations  in  Public 
Health  Administration. ' '  (Jour. 
A.  M.  A.,  Aug.  28,  1909,  Vol. 
LIII,  p.   666.) 

"Certain  Legal  Aspects  of  Do- 
mestic Quarantine."  (Jour.  A. 
M.  A.,  Aug.  27,  1910,  Vol.  LV,  p. 
741.) 

' '  Executive  Methods  in  Preven- 
tive Medicine."  (Jour.  Am.  Pub- 
lic Health  Assn.,  p.  251,-  April, 
1911,  Vol.  I,  N.  S.) 

' '  Legal  Aspect  of  Public  Health 
Work  in  Illinois."  (Illinois  Law 
Review,   Vol.   V,  p.   157.) 


Vlll  PUBLIC   HEALTH    ADMINISTRATION 

the  executive  in  Illinois,  if  adopted,  would  alone  en- 
title him  to  the  gratitude  of  the  community.  A  gen- 
eration from  now  the  advanced  wisdom  of  those  pro- 
posals will,  let  us  hope,  figure  as  realized  truisms 
throughout  the  country. 

The  task,  in  this  book,  of  stating  the  law  and  exhibit- 
ing its  lines  of  contact  with  the  demands  of  science, 
as  well  as  of  pointing  out  the  necessary  adjustment  of 
medical  methods  to  the  fundamental  restrictions  of 
law,  is  a  difficult  and  a  delicate  one.  No  doubt,  to  the 
legal  profession  some  passages  will  seem  platitudes, 
and  others  more  than  disputable.  Possibly  the  medical 
profession  could  find  similar  points  of  disagreement. 
But  the  task  of  welding  together  the  two  bodies  of 
learning  needed  to  be  done.  Even  in  the  hands  of  one 
uniting  rarely  the  requisite  accomplishments  of  learn- 
ing in  both  sciences,  it  may  be  that  to  satisfy  in  every 
detail  two  professions  of  such  vast  scope  of  learning  is 
more  than  could  humanly  be  expected. 

The  needful  thing  today  is  that  the  two  professions 
should  avail  themselves  of  these  materials  to  learn 
each  of  the  other, — that  each  should  set  itself  con- 
scientiously to  re-examine  its  own  postulates  in  the 
light  of  the  other's.  My  advice  to  all  lawyers,  judges, 
and  health  officers  is  to  read  and  ponder  every  chapter 
of  this  book. 

Northwestern  University,  Chicago,  March  4, 1914. 

"The  Organization  of  the  State 
Executive  in  Illinois."  (Illinois 
Law  Keview,  Vol.  VI,  p.  112.) 


FOREWORD 

The  reception  which  has  been  accorded,  both  by  san- 
itarians and  members  of  the  bar,  to  certain  articles 
upon  the  legal  aspects  of  public  health  work  has  en- 
couraged the  writer  to  extend  his  labors  in  that  field. 
The  hunger  evidenced  for  definite  information  upon 
the  subject,  and  the  absence  of  any  authoritative  Amer- 
ican treatise  have  emboldened  him  to  attempt  to  pro- 
duce such  a  work.  It  is  very  apparent  that  most  health 
officials  have  only  a  very  limited  comprehension  of  the 
principles  of  law.  Orders  and  ordinances  are  passed 
which  are  totally  lacking  in  constitutionality,  and  au- 
thority is  frequently  usurped  without  a  reasonable  ex- 
cuse. On  the  other  hand,  a  realization  of  the  personal 
liability,  without  a  clear  idea  as  to  its  limits,  may 
deter  well  meaning  men  from  performing  their  duty. 
As  an  efficient  state  official  once  remarked  to  the  writer, 
"We  issue  our  orders.  If  they  are  obeyed,  all  right. 
If  they  are  vigorously  opposed,  we  run  home  like  a 
whipped  dog."  It  must  be  apparent  tq  all  that,  no 
matter  how  satisfactory  the  average  result  happens  to 
be,  such  a  course  does  not  exemplify  good  government. 

In  attempting  to  produce  an  "authoritative" 
manual,  the  writer  does  not  claim  that  his  opinion  is 
authoritative,  in  the  sense  that  it  is  always  a  safe 
guide.  Judge  Dillon  says  in  the  introduction  to  his 
work  on  municipal  corporations:  "No  writer  on  our 
jurisprudence  is  authorized  to  speak  oracularly,  to 

ix 


X  PUBLIC   HEALTH   ADMINISTRATION 

excogitate  a  system,  or  to  give  his  views  in  any  au- 
thoritative sanction.  *  *  *  No  author  can  alter 
this  inexorable  condition;  and  any  author  ought  to 
be  content,  and  certainly  will  be  fortunate,  if  he  can 
leave  on  the  imperishable  structure  of  our  jurispru- 
dence some  visible  imprint,  some  lasting  touch,  some 
embodied  memorial,  however  slight,  of  his  labors." 
With  this  spirit,  conditions  have  been  studied,  and  de- 
cisions have  been  examined,  to  develop  therefrom,  if 
possible,  some  reasonable  basis  of  action.  It  shall  be 
the  aim  in  the  following  pages  to  show  the  nature  and 
the  limits  of  legal  authority,  and  thus  strengthen  the 
service. 

We  have  reached  a  transition  period,  when  a  reor- 
ganization of  the  work  is  demanded.  The  probabili- 
ties are  that  there  will  be  much  public  health  legisla- 
tion in  the  near  future.  It  is  hoped  that  these  studies 
as  to  the  principles  of  public  health  law  in  the  United 
States  may  aid  in  perfecting  proposed  statutes.  Where- 
as most  commentaries  in  law  aim  purely  at  a  state- 
ment of  the  law  as  found  in  the  statutes  and  court 
decisions,  the  writer  of  these  pages  craves  permission 
to  make  suggestions  as  to  the  future.  In  the  days  of 
small  ships  shallow  streams  might  be  sufficient  for  the 
transportation  of  commerce.  So  long  as  the  ships  re- 
mained small,  all  that  was  necessary  was  to  chart  the 
streams,  showing  the  shallows  and  the  rocks.  With 
the  increase  in  the  size  of  the  boats,  it  may  become 
necessary  to  abandon  the  old  water  courses,  and  dig 
anew.  Ship  canals  are  not  dug  at  random.  Surveys 
must  be  made,  and  often  the  first  course  proposed  must 
be  abandoned.  Like  the  plats  of  the  engineers,  the 
suggestions  here  made  may  prove  to  be  impracticable 


FOREWORD  XI 

and  inadvisable,  but  it  is  hoped  that  even  if  so,  they 
may  still  aid  in  finding  the  true  solution  of  the  prob- 
lems. 

Recognizing  the  fact  that  the  work  is  for  the  use 
of  widely  differing  classes  of  readers,  it  has  seemed 
necessary  to  rehearse  in  the  earlier  chapters  certain 
elementary  principles,  that  sanitarians  and  members 
of  the  bar  may  meet  upon  a  common  ground  of  under- 
standing. In  the  past,  laws  proposed  by  sanitarians 
have  often  failed  through  neglect  of  the  principles  of 
law;  likewise  those  drafted  by  lawyers,  have  fallen 
short  of  their  purpose  because  they  have  not  com- 
prehended the  present  advance,  and  the  discovered 
facts  in  science.  Legislators  have  neglected  to  act 
because  they  have  not  realized  their  responsibilities. 
The  science  of  public  health  has  advanced  far  beyond 
the  administration.  It  needs  the  co-operation  of  all 
to  attain  the  results  which  by  right  belong  to  the 
nation. 

Today,  much  of  the  work  which  properly  belongs  to 
the  public  health  service,  is  being  done  by  private 
enterprise.  It  could,  and  should,  be  better  done  by  the 
recognized  forces  of  government.  Private  enterprise 
has  been  stirred  by  the  weakness  of  administration. 
Witness  the  hysterical  efforts  of  citizens '  committees 
in  the  past  in  the  presence  of  epidemics ;  and  the  pres- 
ent crusade  against  the  white  plague.  These  unofficial 
movements  would  be  unnecessary  if  the  authorized  offi- 
cers of  government  were  doing  their  duty.  The  fault 
may  be  partly  with  the  officers  of  health;  but  more 
especially  it  is  due  to  the  weakness  of  the  law,  and 
the  lack  of  appreciation  of  the  necessities  on  the  part 
of  the  citizens  of  the  land. 


Ill  PUBLIC    HEALTH   ADMINISTRATION 

Assistant  Surgeon  General  Rucker  has  emphasized 
the  need  for  greater  care  relative  to  sanitary  legisla- 
tion.   In  the  United  States  Health  Reports,  he  says:  * 

' '  There  is  in  this  country  a  wealth  of  sanitary  legis- 
lation which  is  impractical  of  administration  and  which 
lacks  uniformity  and  logical  basis.  The  epidemiologist 
whose  business  it  is  to  study  disease  in  the  light  of 
prevention  has  long  ago  learned  that  one  law  in  opera- 
tion is  worth  ten  unenforced  laws  on  the  statute  books. 
More  than  this,  an  idle  law  casts  discredit  upon  the 
legislators  who  begat  it  and  the  officials  whose  busi- 
ness it  is  to  enforce  it.  It  encourages  a  disregard  of 
laws  which  it  is  desired  to  enforce,  and  therefore  acts 
as  a  general  hinderance.  Many  of  the  public  health 
activities  in  this  country  would  be  further  advanced 
today  were  they  not  hampered  by  impractical  laws 
passed  by  the  overzealous.  It  must  be  admitted  in  all 
justice  that  the  public  health  authorities  have  to  a 
certain  extent  aided  and  abetted  in  the  passage  of 
these  laws.  The  enthusiasm  of  which  we  have  been 
speaking  has  led  to  the  formation  of  a  large  number 
of  societies  having  for  their  object  the  prosecution  of 
some  particular  form  of  public  health  activity. "  (The 
old  adage  "Too  many  cooks  spoil  the  broth,"  applies 
perfectly  here.  With  the  multiplication  of  these  sep- 
arate activities  there  results  confusion  and  conflict.) 
Rucker  goes  on  to  say:  "Two  general  sets  of  faults 
may  be  found  in  the  sanitary  laws  of  this  country. 
The  most  common  of  these  is  a  scatteration  of  ideas, 
and  loading  down  the  health  officer  with  more  power 
than  he  could  possibly  use.  This  is  just  as  great  a 
fault  as  giving  him  too  little  power.  Frequently  a  law 
errs  in  the  opposite  direction,  and  endeavors  to  be  too 

iBeprint  No.  173. 


FOREWORD  Xlll 

specific,  in  which  event  it  becomes  the  victim  of  legal 
quibbles  which  prove  its  utter  undoing.  Most  of  these 
laws  are  drawn  up  by  amateurs,  and  even  the  very 
wisest  professional  is  sometimes  hard  put  to  it  to  draft 
a  proper  law.  In  this  connection,  it  may  be  pointed  out 
that  the  profession  of  law  is  becoming  highly  spe- 
cialized. We  have  corporation  lawyers  for  the  mining 
industry,  the  banking  industry,  and  for  the  various 
other  classes  of  corporations.  As  a  matter  of  fact, 
there  is  a  specialty  for  every  kind  of  law  from  crime 
to  real  estate,  excepting  sanitary  law,  and  there  is  great 
need,  indeed,  for  men  who  can  combine  with  a  knowl- 
edge of  the  law  a  knowledge  of  the  fundamentals  of 
epidemiology.,, 

The  importance  of  the  technical  drafting  of  acts  is 
better  recognized  in  England  than  in  this  country.  A 
great  deal  of  the  law  enacted  there  is  offered  in  form 
by  the  government ;  and  for  many  decades  the  govern- 
ment has  employed  expert  drafters,  holding  office  under 
the  Treasury.  Mr.  Courtenay  Ilbert,  who  formerly 
held  that  post,  and  more  recently  has  been  Clerk  of 
the  House  of  Commons,  in  1913,  October,  gave  a  course 
of  lectures  under  the  Carpentier  Foundation,  at  Co- 
lumbia University.  These  lectures,  slightly  amplified, 
have  been  published  under  the  caption  ' '  The  Mechanics 
of  Law  Making."  These  are  the  practical  suggestions 
which  he  makes  relative  to  the  preparation  for  the 
drafting  of  a  statute.  The  statute  will  be  desired  to 
supply  a  deficiency  or  correct  a  wrong.  The  general 
subject  having  been  given  to  the  draftsman  he  must 
first  review  and  compare  the  various  statutes  enacted, 
in  that  or  other  jurisdictions,  relating  to  the  problem 
in  hand.    Next  he  must  review  the  court  decisions 


XIV  PUBLIC   HEALTH   ADMINISTRATION 

upon  the  statutes,  and  consider  the  common  law  prin- 
ciples applicable.  Thirdly  he  must  consider  the  facts 
of  science  applicable.  In  the  case  of  sanitary  laws 
this  third  point  must  include  a  knowledge  of  the 
science  of  sanitation,  with  a  knowledge  of  sociology 
and  of  commercial  life.  It  may  also  be  considered  to 
include  administrative  experience.  We  find  practical- 
ly that  when  sanitary  ordinances  are  drawn  up  by  law- 
yers they  are  liable  to  be  inefficient  because  the  drafts- 
man misses  the  main  point,  in  the  same  way  that  a 
drawing,  intended  to  represent  a  dislocation  of  a  ver- 
tebra, was  once  rendered  meaningless  by  the  artist.  He 
removed  the  irregularity  of  outline  which  he  considered 
an  accident  due  to  the  inexperience  of  the  original 
draftsman.  When  ordinances  are  drafted  by  amateurs 
they  are  likely  to  be  greatly  overloaded  with  unessen- 
tial details,  and  not  seldom  they  omit  some  important, 
but  not  prominent  point.  When  drafted  by  sanitary 
officers  they  are  frequently  nullified  by  some  legally 
technical  error.  If  the  health  officer  be  competent,  all 
sanitary  legislation  should  originate  with  him,  and  the 
legal  expert  should  assist  him  in  the  drafting.  The 
amateur  should  aid,  but  not  originate,  legislation.  The 
enthusiastic  amateur  sanitarian  should  expend  his 
strength  in  insisting  that  competent  officers  be  ap- 
pointed and  supported,  and  that  they  be  given  sufficient 
funds  with  which  to  work.  If  the  officer  be  competent 
he  must  know  better  than  the  amateur  lay  citizen  as  to 
the  needs  of  legislation,  and  as  to  the  degree  to  which 
it  is  best  to  press  action. 

In  considering  the  drafting  of  statutes  and  ordi- 
nances it  is  well  to  remember  that  much  that  is  here 
done  by  direct  legislation,  in  England,  for  example, 


FOREWORD  XV 

would  be  left  to  executive  rules  and  orders.  Even  here 
it  is  wise  to  so  draft  a  law  that  the  executive  is  given 
latitude  of  action  within  certain  limits.  The  general 
terms  of  the  statute  are  made  definite  by  executive 
orders  and  regulations.    (§95.) 

Finally,  since  wise  legislation  must  be  the  result  of 
the  union  of  a  knowledge  of  the  facts  of  science  and 
of  law,  it  has  been  the  aim  of  the  writer  to  set  forth 
the  guiding  principles  as  shown  by  the  opinions  of 
those  best  able  to  decide  upon  the  application  of  our 
governmental  ideas  in  this  branch  of  the  police  of 
protection. 


AUTHORITIES  CITED 


Abbreviations.  Title  and  Author. 

Adams — The  Origin  of  the  English  Constitution  (1912),  George  Burton 

Adams. 
Adams,    F.    U. — Conquest    of    the    Tropics    (1914),    Frederick    Upham 

Adams. 
American  Law  Review. 

Ashley — Local  and  Central  Government  (1906),  Percy  Ashley. 
Bacon's  Ab. — A  New  Abridgment  of  the  Law   (1848),  Matthew  Bacon. 
Baker — Bace  Improvement  (1912),  LaBeine  Helen  Baker. 
Beard — An  Economic  Interpretation  of  the  Constitution  of  the  United 

States  (1913),  Charles  A.  Beard. 
Bentham — Works  of  Jeremy  Bentham,  Edinburgh  Ed. 
Bishop — Commentaries  on  Criminal  Law,  Joel  Prentiss  Bishop. 
Black — Constitutional  Law  (1910),  Henry  Campbell  Black. 
Blackstone — Sir  "William  Blackstone,  Commentaries. 
Boyce — Health  Progress  and  Administration  in  the  West  Indies  (1910), 

Sir  Rubert  W.  Boyce. 
Bryce,  S.  Am. — South  America  (1912),  Sir  James  Bryce. 
Bryce,    Am.    Com. — American    Commonwealth    (First    Ed.),    Sir    James 

Bryce. 
Campbell — Lives    of  the   Lord   Chancellors,    5th    Edition    (1868),    Lord 

John  Lord  Campbell. 
Census — Compendium  of  the  Seventh  Census. 

Chapin — Municipal  Sanitation  in  the  United  States,  Charles  V.  Chapin. 
Colquhoun — Greater  America    (1904),  Archibald  B.   Colquhoun. 
Columbia  Law  Beview. 
Congressional  Annals. 
Cooley,  Cons.  Lim. — Constitutional  Limitations,  3d  Ed.   (1874),  Thomas 

Cooley. 
Cooley,  Tax — On  Taxation,  2nd  Ed.,  Thomas  Cooley. 
Cooley,  Torts — On  Torts,  Thomas  Cooley. 
Cyc. — Cyclopedia  of  Law  and  Procedure,  William  Mack. 
Davenport — Heredity  in  Relation  to  Eugenics   (1911),  Charles  Benedict 

Davenport. 
Dawson — Right  of  the  Child  to  be  Wellborn  (1912),  George  E.  Dawson. 
Dicey — The  Law  of  the  Constitution,  2d  Ed.,  A.  V.  Dicey. 
Dillon — Municipal  Corporations  (1890),  4th  Ed.,  John  F.  Dillon. 

xvii 


XV111  PUBLIC   HEALTH   ADMINISTRATION 

Eaton — Government  of  Municipalities  (1899),  Dorman  Bridgman  Eaton. 

Eder — Colombia,  Phanor  James  Eder. 

Elliott — The    Principles   of    the    Law    of    Public    Corporations    (1898), 

Charles  B.  Elliott. 
Fairlie — Municipal  Administration   (1901),  John  A.  Fairlie. 
Federalist. 

Freund— Police  Power  (1904),  Col.  Ed.,  Ernst  Freund. 
Goldmark — Fatigue  and  Efficiency  (1912),  Josephine  Goldmark. 
Goodnow,  Ad.  Law — The  Principles  of  the  Administrative  Law  of  the 

United  States  (1905),  Frank  J.  Goodnow. 
Goodnow,     Mun.     Gov. — Municipal     Government      (1909),     Frank     J. 

Goodnow. 
Herrera — Historia  General  de  los  hechos  de  los  Castellanos  en  las  islas 

y  tierra  firma  del  mar  Oceano,  Antonio  de  Herrera  y  Tordesillas. 
High — Extraordinary  Legal  Eemedies,  J.  L.  High. 
Hirst— Argentina  (1910),  W.  A.  Hirst. 

Ilbert — The  Mechanics  of  Law  Making  (1914),  Courtenay  Ilbert. 
Ingersoll — Handbook  of  the  Law  of  Public  Corporations  (1904),  Henry 

Hulbert  Ingersoll. 
Jefferson — A     Manual     of     Parliamentary     Practice     (1843),     Thomas 

Jefferson. 
Journal  of  Criminal  Law  and  Criminology. 
Lauber — Indian  Slavery  (1913),  Almon  Wheeler  Lauber. 
Lieber — Civil   Liberty  and   Self   Government,    3d    Ed.    (1877),   Francis 

Lieber. 
Locke— Works  of  John  Locke  (1823). 
Low — Egypt  in  Transition  (1914),  Sidney  Low. 

Maine — Popular  Government  (1886),  Sir  Henry  James  Sumner  Maine. 
McGehee — Due  Process  of  Law  (1906),  Lucius  Polk  McGehee. 
Mechem,  Pub.  Off.— Public  Officers  (1890),  Floyd  L.  Mechem. 
Mechem,  Agen. — On  Agency,  Floyd  L.  Mechem. 

Miller — Lectures  on   the  Constitution    (1891),   Samuel   Freeman   Miller. 
Montesquieu — Esprit  des  Loix — The  Spirit  of  Laws,  Baron  Charles  de 

Seeondat  Montesquieu. 
Moses    and    Kirkland — History    of    Chicago,    John    Moses    and    Joseph 

Kirkland. 
Ogg — Governments  of  Europe  (1913),  Frederic  Austin  Ogg. 
Opinions  of  Attorney  General,  United  States. 
Paley — Moral  and  Political  Philosophy  (1850),  William  Paley. 
Pennington — The  Argentine  Kepublic  (1910),  A.  Stuart  Pennington. 
Pomeroy — Constitutional  Law,  4th  Ed.    (1879),  John  Norton  Pomeroy. 
Prentice    and    Egan — Commerce    Clause    of    the    Federal    Constitution 

(1898),  E.  P.  Prentice  and  J.  G.  Egan. 
Pollock — Law  of  Torts,  Sir  Frederick  Pollock. 
Quarterly  Journal  of  Economics. 

Quarterly  of  the  Federation  of  State  Medical  Boards  of  the  United  States. 
Rawle— A  View  of  the  Constitution,  2nd  Ed.  (1829),  William  Kawle. 


AUTHORITIES    CITED  XIX 

Eeports  of  the  Attorney  General,  Illinois. 
Eev.  Stat.,  111.— Eevised  Statutes,  Illinois  (Hurd)    (1912). 
Eev.  Stat.,  U.  S. — Eevised  Statutes  of  The  United  States  (1878  and  Sup- 
plements). 
Eoss — Prevention  of  Malaria  (1910),  Sir  Eonald  Eoss. 
Southern  Law  Eeview. 

Story,  Agen. — Commentary  on  Agency,  9th  Ed.    (1882),  Joseph  Story. 
Story,  Cons. — Commentary  on  Constitution,  5th  Ed.,  Joseph  Story. 
Story,  Cont. — Commentary  on  Contracts,  Joseph  Story. 
Story,  Eq.  Jur. — Commentary  on  Equity  Jurisprudence,  Joseph  Story. 
Taylor — International  Public  Law  (1901),  Hannis  Taylor. 
Throop — Public  Officers  (1892),  Montgomery  W.  Throop. 
Tuck.  Blackstone — Blackstone's  Commentaries,  St.  George  Tucker. 
U.  S.  Public  Health  (and  Marine  Hospital)  Service. 

U.  S.  P.  H.  L.  Bui. — Hygienic  Laboratory  Bulletins. 

U.  S.  P.  H.  Bui.— Public  Health  Bulletins. 

U.  S.  P.  H.  Eep.— U.  S.  Public  Health  Eeports. 
Webster— Works  of  Daniel  Webster  (1869). 
Wharton — International  Law  Digest   (1866),  Francis  Wharton. 
White — Autobiography  of  Andrew  D.  White  (1905). 
Wigmore — Treatise  on  Evidence,  John  Henry  Wigmore. 
Woolsey — Introduction    to    International    Law     (1875),     Theodore    D. 

Woolsey. 
Wyman — Administrative  Law   (1903),  Bruce  Wyman. 


CONTENTS 


PART  I 

GENERAL  PRINCIPLES 

CHAPTER  I 

RELATIONSHIP  OF  PUBLIC  HEALTH  TO  BODY  POLITIC — SCIENTIFIC 
BASIS  OF  PUBLIC  HEALTH  EFFORTS 

§     1.  Health,  the  basis  of  success 2 

§     2.  Necessity  for  public  health  service 2 

§     3.  Illustrative  results  of  health  protection 3 

§     4.  Governmental  or  commercial  control 5 

§     5.  Health  preservation  a  motive  for  municipal  organ- 
ization    5 

§     6.  Science  of  public  health  of  recent  origin 6 

§     7.  Local  versus  state  supervision 6 

§     8.  Economic  changes  alter  problems 7 

§     9.  Municipal  control  limited  by  nature  and  law 9 

§  10.  Diversity  of  municipal  methods  causes  confusion . .  10 

§  11.  Bacterial  problems  in  commerce 10 

§  12.  Advancement  of  science  changes  legal  methods 11 

§  13.  Legal  uncertainties  necessary  for  advancement 13 

§  14.  Reasonableness  of  action  important. 14 

§  15.  Reasonableness  based  on  facts 15 

§  16.  Health  administration  distinct  from  medical  prac- 
tice    15 

§  17.  Scope  of  health  service 18 

§  18.  Epidemiology    19 

§  19.  Koch's  postulates 20 

§  20.  Protozoa 20 

§  21.  Action  of  bacteria 21 

§  22.  Antitoxic  Sera 22 

§  23.  Phagocytosis 23 

§  24.  Changes  in  virulence 24 

§  25.  Bacterial  antagonisms 26 

xxi 


XX11  CONTENTS 

§  26.  Entrance  of  bacteria  to  body 27 

§  27.  Insect  carriers  versus  hosts 28 

§  28.  Animal  hosts 29 

§  29.  Means  of  restricting  infectious  diseases 30 

§  30.  Disease  carriers — human 31 

§  31.  Eeasonableness,  a  problem  of  probabilities 31 

§  32.  Reasonableness  of  requiring  reports  of  infectious 

diseases 33 

CHAPTER  II 

UNDERLYING     PRINCIPLES     OF     GOVERNMENT — COMMON     LAW 

CONSTITUTIONS,   INSTITUTIONS   AND   STATUTES 

§  33.  Governmental  ideals   34 

§  34.  Centralized  system 35 

§  35.  Collective  authority 35 

§  36.  Development  of  Anglican  liberty 36 

§  37.  Individual  liberty  necessitates  restraint 36 

§  38.  True  liberty  is  communal 36 

§  39.  Liberty  influenced  by  density  of  population 37 

§  40.  Mistaken  ideas  of  liberty  obstacles  to  progress 37 

§  41.  Liberty  influenced  by  division  of  labor 38 

§  42.  Constitutional  liberty 38 

§  43.  Legal  interpretation 39 

§  44.  Supremacy  of  law 39 

§  45.  Common  law 40 

§  46.  Common  law  basis  of  liberty 42 

§  47.  Common  versus  statutory  law 42 

§  48.  Institutions    43 

§  49.  Antiquated  institutions 43 

§  50.  English  Constitution 44 

§   51.  American  Constitutions 44 

§  52.  Common  law,  constitutions  and  statutes 45 

§  53.  Interpretation  of  law  by  courts 46 

§  54.  Illegal  acts  sometimes  sanctioned 46 

§  55.  Doctrine  of  expediency 47 

§  56.  Public  health  has  overridden  legal  restriction 47 

§  57.  Foresight  better  than  emergent  energy 49 

§  58.  Purity  of  intention  no  excuse 50 


CONTENTS  XX111 

§  59.  Compliance  with  law  to  be  preferred 51 

§  60.  Injurious  institutions 52 

§  61.  Health  powers  too  great 52 

§  62.  Law  should  be  observed 52 

§  63.  Institutions  and  statutory  law  preserve  personal 

freedom    53 

§  64.  ''Force  of  Law" 53 

CHAPTER  III 

THE    TRIPLE   SYSTEM   OP    GOVERNMENT,   AND    RELATION   OF    EACH 
BRANCH   TO   PUBLIC   HEALTH   ADMINISTRATION 

§    65.  The  anatomy  and  physiology  of  government 56 

§    66.  Three  branches  of  government 56 

§    67.  Separation  of  powers  often  ignored  in  public  health 

administration    57 

§    68.  Importance  of  Triple  System 58 

§    69.  Union  of  powers,  tool  of  tyranny 58 

§    70.  No  liberty  with  powers  united 59 

§    71.  Separation  of  powers  purely  Anglican 60 

§    72.  Separation  most  perfect  in  United  States 61 

§    73.  Union  of  powers  in  European  governments 61 

§    74.  Abuse  of  power  may  not  be  frequent 62 

§    75.  Paper  constitutions 62 

§    76.  Basis  for  comparison  of  governments 62 

§    77.  Confederation  not  a  nation 64 

§    78.  Permanence  of  nation  depends  upon  individual 

restriction 64 

§    79.  Latin- American  government 65 

§    80.  Misjudgment    66 

§    81.  United  States,  division  of  powers 66 

§    82.  State  constitutional  provisions 67 

§    83.  Lack  of  distributive  clause 68 

§    84.  Danger  of  congressional  usurpation  of  power 68 

§    85.  Illegal  custom  lacks  sanction -.  69 

§    86.  Executive  quasi-legislative  or  quasi-judicial  com- 
bination    69 

§    87.  Municipal  division  of  powers 70 

§    88.  Judges  acting  as  executives 70 


XXIV  CONTENTS 

§    89.  Legislative  branch 70 

§    90.  Municipal  legislative  power  limited 72 

§    91.  State  legislative  infringement  upon  judicial  power 

not  prohibited  by  Federal  Constitution 73 

§    92.  Division  of  powers  in  state  governed  by  state  con- 
stitution    73 

§    93.  Judicial  action  of  legislature  prohibited 73 

§    94.  Legislation  by  ' '  the  people  " 74 

§    95.  Legislative  power  can  not  be  delegated 75 

§    96.  Executive  assumption  of  legislative  power 76 

§    97.  Executive  emergency 76 

§    98.  Executive  assumption  of  judicial  power. , 78 

§    99.  Executive  duty  to  give  legislature  information ....  78 

§  100.  Executive  orders,  law  ? 78 

§  101.  Power  yielded  because  claimed  is  not  sanctioned ...  81 

§102.  Executive  orders  and  regulations,  limitation  of. .. .  81 

§  103.  Legislative  limitations 87 

§  104.  Due  process  of  law 87 

§  105.  Public  health  protection,  police  power 88 

§  106.  Public  health  activities  based  upon  idea  of  "nui- 
sance"    89 

§  107.  Lack  of  legislation,  a  source  of  executive  weakness.  89 
§  108.  Legislation  more  needful  in  decentralized  govern- 
ment    90 

§  109.  Legislation  definite  in  effect 91 

§  110.  Agreement  of  three  branches  necessary 92 

§  111.  Executive  semi-legislative  duties 92 

§  112.  Illegal  statutes 93 

§  113.  Crazy-quilt  legislation 94 

§  114.  Executive  duty  to  systematize  enacted  statutes. ...  94 

§  115.  Limitation  and  distinction  95 

CHAPTER  IV 

THE  EXECUTIVE — ORGANIZATION 

§  116.  National  executive 96 

§  117.  State  executive 97 

§  118.  Oneness  of  executive 98 

§  119.  Boards  of  health 100 


CONTENTS  XXV 

§  120.  Subjection   of  the   trained   specialist  to  the   un- 
trained official 104 

§  121.  Organization 106 

§  122.  Individual  responsibility 107 

§  123.  Principles  in  organization 109 

§  124.  Appointment  by  the  Governor 109 

§  125.  Power  to  appoint  not  inherent 110 

§  126.  Restrictions  in  appointment 112 

§  127.  Power  of  removal 114 

§  128.  One  man  in  charge  of  each  department 115 

§  129.  Experts,  paid  by  salary 116 

§  130.  Paid  by  salary,  not  by  fees 117 

§  131.  Responsibility  must  be  tangible 119 

§  132.  Organization  of  State  Department  of  Health 119 

§  133.  Excess  of  power 122 

§  134.  Appeal  in  department 122 

§  135.  Duty  of  executive  to  advise  legislation 125 

§  136.  Summary    126 

CHAPTER  V 

THE  JUDICIARY 

§  137.  Judiciary,  a  governmental  balance-wheel 129 

§  138.  Individual  supremacy  of  branches 131 

§  139.  Judicial  power  over  legislation 133 

§  140.  Judical  power  over  executives 136 

§  141.  No  appellate  power  over  certain  executive  acts. . . .  137 

§  142.  Executive  jurisdiction 142 

§  143.  Departmental  adjudication 143 

§  144.  State  courts 147 

§  145.  General  statement 147 

CHAPTER  VI 

POLICE  POWER,   NATURE  OF  AND  METHODS 

§  146.  Health  authority  based  on  Police  Power 149 

§  147.  Police  or  police  power 150 

§  148.  Police  power  defined 151 

§  149.  Characteristics 152 


XXVI  CONTENTS 

§  150.  Distinguished  from  criminal  punishment 153 

§  151.  An  expression  of  social,  economic,   and  political 

conditions   154 

§  152.  AUenum  non  laedat 154 

§  153.  Police  power  superior  to  individual  rights 156 

§  154.  Statutes  dependent  upon  police  power 156 

§  155.  Cannot  be  alienated 157 

§  156.  Police  power  of  state  may  be  superior  to  congres- 
sional supervision  of  commerce 158 

§  157.  A  dangerous  power 158 

§  158.  Summary  executive  action 158 

§  159.  Discretion  may  not  be  coerced 160 

§  160.  Courts  feeble  to  resist  acts  under  discretion 161 

§  161.  Statutory  action 161 

§  162.  Judicial  determination  under  police  power 163 

§  163.  Efficiency  increased  by  definiteness  of  enactment. .  166 

§  164.  Variety  of  methods 166 

§  165.  Disadvantages  in   administration  through  enact- 
ment    168 

§  166.  Legislation  should  be  mandatory  only  when  based 

on  settled  facts 170 

§  167.  Administrative  action  specific ;  legislative,  general  170 
§  168.  Public   health  portion  of  police  power   includes 

what?    171 

§  169.  Regulation  versus  prohibition 174 

§  170.  Reasonableness 176 

§  171.  Extreme  use  of  police  power 178 

§  172.  Extreme  use  must  be  clearly  necessary 182 

CHAPTER  VII 

"due  process  of  law" 

§  173.  Historical  origin,  protection  of  individual  rights.  .  184 
§  174.  Fifth   Amendment   restricts   nation ;   Fourteenth, 

the  state 188 

§  175.  Pomeroy's  summary 189 

§  176.  Legislation,  due  process  by 189 

§  177.  Laws  must  be  impartial 191 

§  178.  Protection  from  state,  not  from  fellow  citizens . . .  191 


CONTENTS  XXV11 

§  179.  Who  are  protected  ?  193 

§  180.  Exclusion  acts  193 

§  181.  State  exclusion  acts 196 

§  182.  Corporations  are  protected 196 

§  183.  Property  is  protected 197 

§  184.    Regulation   includes   continued   control;   medical 

licenses    198 

§  185.  Wild  animals  are  protected  200 

§  186.  Dogs 201 

§  187.  Property  created  contrary  to  law  not  protected .  .  .  202 

§  188.  Property  inherently  harmful,  not  protected 202 

§  189.  Nuisance  per  se  203 

§  190.  Right  to  a  hearing 203 

§  191.  Property  under  eminent  domain  and  police  power 

contrasted 205 

§  192.  Due  process  by  executive 206 

§  193.  Health  administration   207 

§  194.  Summary  action  may  be  legal 214 

§  195.  Legislative  action  must  be  reasonable 215 

§  196.  Jurisdiction    217 

§  197.  Executive  hearings 218 

CHAPTER  VIII 

NUISANCE 

§  198.  Nuisance  harmful  220 

§  199.  Nuisance  per  se  or  in  esse 221 

§  200.  Nuisance  in  posse 221 

§  201.  Nuisance  a  question  of  fact 224 

§  202.  Common  law  nuisance — statutory  nuisance 227 

§  203.  Executive  determination  230 

§  204.  Judicial  determination 231 

§  205.  Statutory  determination   .  . 231 

§  206.  Nuisances  prohibited,  abated,  or  regulated 231 

§  207.  Abatement    .232 

§  208.  Summary  Abatement 233 

§  209.  Hearing  after  abatement 234 

§  210.  Destruction  not  always  permissible 235 

§  211.  Urgency,  not  intrinsic  value,  must  govern 237 


XXV111  CONTENTS 

§  212.  License  does  not  abrogate  power 237 

§  213.  Legislative  determination  best  240 

§  214.  Authority  for  abatement  is  not  for  construction .  .  241 

CHAPTER  IX 

PUBLIC  HEALTH  POWERS  AND  LIMITATIONS,  NATIONAL,  STATE,  AND 

MUNICIPAL 

Nation 

§  215.  Police  power  resides  in  the  states 243 

§  216.  Vital  statistics 245 

§  217.  Treaty  making  power  resides  in  nation 246 

§  218.  Treaties  classified  248 

§  219.  Legislative   power  originating  in  treaty   making 

authority 249 

§  220.  Subjects  of  treaty   249 

§  221.  Legislation  dependent  upon  treaty  making  power.  252 

§  222.  Qualifications  for  Federal  Officers 254 

§  223.  Qualifications  for  citizenship 255 

§  224.  Vital  statistics  as  evidence 255 

§  225.  Census 256 

§  226.  Authority  to  require  reports,  not  authority  for 

prevention 258 

§  227.  Vital  statistics  not  essentially  health  measures . . .  258 

§  228.  Specified  and  implied  powers 260 

§  229.  Powers  of  nation,  territories 262 

§  230.  Powers  of  the  nation  over  public  places 264 

§  231.  Powers  of  the  nation  among  states 267 

§  232.  Regulation  of  commerce 267 

§  233.  Commerce  includes  what  ? 268 

§  234.  Pure  Foods  and  Drugs 269 

§  235.  Determination  by  executive 274 

§  236.  Interstate  commerce  includes  persons 275 

§  237.  White  slave  traffic 276 

§  238.  Meaning  of  interstate 278 

§  239.  What  is  an  original  package 284 

§  240.  Federal  control  over  manufacture 301 

§  241.  Authority  versus  policy   303 


CONTENTS  XXIX 

§  242.  Federal  control  over  means  of  transportation 305 

§  243.  Purity  of  interstate  waters 307 

§  244.  Enforcement  of  state  acts 313 

State 

§  245.  Sanitary  authority  of  the  states 314 

§  246.  State  authority  in  health  recognized  by  federal 

government „ 316 

§  247.  Conflict  between  state  health  regulation  and  na- 
tional law  317 

§  248.  State  stoppage  of  navigation 317 

§  249.  State  authority  in  matters  of  health  is  exclusive. .  323 
§  250.  State    sanitary    authority    may    override    federal 

authority  324 

§  251.  State  laws  not  conclusive  as  to  authority 325 

§  252.  Meat  inspection 326 

§  253.  Authority  of  state  must  be  evident  in  the  act 327 

City 

§  254.  Eelation  of  municipality  to  state 328 

§  255.  City  corporation  329 

§  256.  Legislation    331 

§  257.  Ordinances  must  not  exceed  limits  of  statutes. . . .  334 

§  258.  Authority  may  be  general,  specific,  or  implied ....  337 

§  259.  Ordinance  must  not  contravene  common  rights. .  .  339 

§  260.  State  may  do  what  the  city  may  not 342 

§  261.  Ordinance  not  unreasonable  if  authorized  by  state  343 

§  262.  Executive  authority  depends  upon  legislative ....  343 

CHAPTER  X 

OFFICERS 

§  263.  Importance  of  the  subject 348 

§  264.  Executive   department  composed  of  officers  and 

employees 348 

§  265.  Office  and  employment  distinguished 350 

§  266.  Offices  not  dependent  upon  statutes 354 

§  267.  Honorary  office   357 

§  268.  Lucrative  office   357 


XXX  CONTENTS 

§  269.  Classification  according  to  service 358 

§  270.  Ministerial  or  discretionary  duties 359 

§  271.  Discretion  implies  free  use  of  judgment 360 

§  272.  Discretionary  power  cannot  be  delegated 360 

§  273.  Arbitrary  action  not  discretion 363 

§  274.  Officers  with  discretion  cannot  be  coerced 364 

§  275.  Discretionary  decision  not  subject  of  purchase.  . .  .  366 

§  276.  Public  and  private  officers 367 

§  277.  State  versus  municipal  officers 369 

§  278.  State  officers  proper 371 

§  279.  Officers  de  jure  and  de  facto 372 

§  280.  No  office  de  facto 374 

§  281.  Determination  of  title  to  office 376 

§  282.  Appointment  to  office 379 

§  283.  Appointment  by  same  branch  of  government 380 

§  284.  Appointment  by  non-official  body 381 

§  285.  Power  to  appoint  must  be  given  by  law 383 

§  286.  Municipal  or  board  appointments 384 

§  287.  Appointment  implies  written  commission 385 

§  288.  Commission  is  evidence  of  appointment 387 

§  289.  Commission  best  evidence  of  appointment 387 

§  290.  Time  for  appointment  388 

§  291.  Appointments  requiring  confirmation,  made  dur- 
ing recess 389 

§  292.  Recess  appointments  must  be  submitted  for  con- 
firmation    392 

§  293.  Time  for  which  appointed 393 

§  294.  Vote  must  show  approval 393 

§  295.  Action  of  majority  394 

§  296.  Vote  need  not  show  quorum 393 

§  297.  Sufficiency  of  notice 396 

§  298.  Appointment  by  two  or  more  bodies 398 

§  299.  Appointive  power  once  used  is  exhausted 399 

§  300.  Appointment  of  self 400 

§  301.  Appointments  by  outgoing  officers 400 

§  302.  Municipal  authority  to  create  offices  and  make  ap- 
pointments    401 

§  303.  Appointments  of  two  or  more  for  unspecified  class 

or  district 402 


CONTENTS  XXXI 

§  304.  Officers  of  health  appointed,  not  elected 403 

§  305.  Eligibility  for  apointment,  citizenship 403 

§  306.  Natural  qualifications 406 

§  307.  Educational  qualifications 407 

§  308.  Legislative  restrictions 409 

§  309.  Holding  two  offices 412 

§  310.  Civil  service  415 

§  311.  Acceptance  of  office   416 

§  312.  Taking  office 417 

§  313.  Taking  receipts  from  successor  in  office 417 

§  314.  Term  of  office 418 

§  315.  No  term,  office  held  at  pleasure 418 

§  316.  Term  fixed  by  constitution 420 

§  317.  Holding  over  term 425 

§  318.  Appointments  to  fill  vacancies 426 

§  319.  When  term  begins  426 

§  320.  Compensation  for  service — office  not  a  contract . . .  427 

§  321.  Importance  of  salary  in  health  service 431 

§  322.  Inadequate  salaries  expensive 433 

§  323.  "Office"  of  wider  significance  than  "officer" 434 

§  324.  Officer's  compensation  determined  by  legislation.  .  435 
§  325.  Constitutional  prohibition  of  change  of  salary  dur- 
ing term   439 

§  326.  When  compensation  may  be  fixed  after  appoint- 
ment      442 

§  327.  Effect  of  increased  duties 444 

§  328.  Payment  of  substitute  for  extra  services  not  per- 
missible    447 

§  329.  Extra  official  duties 451 

§  330.  Compensation  for  two  offices 452 

§  331.  Compensation  depends  upon  actual  service 453 

§  332.  Second  term  presupposes  old  rate 455 

§  333.  Abolition  of  office  stops  compensation 455 

§  334.  Dissatisfied  officer  may  resign 455 

§  335.  Original  bond  covers  extra  duties 456 

§  336.  Officer  can  not  pay  self 456 

§  337.  Unearned  salary  not  assignable 462 

§  338.  Officers'  salaries  are  not  subject  to  garnishee 465 

§  339.  Termination  of  official  relation 466 


XXXU  CONTENTS 

§  340.  Death 466 

§  341.  Abolition  of  office  468 

§  342.  Expiration  of  term 470 

§  343.  When  an  officer  may  not  hold  over 472 

§  344.  Abandonment  of  office.    Failure  to  qualify 473 

§  345.  Abandonment  after  qualification 474 

§  346.  Malfeasance 474 

§  347.  Nonuser  as  cause  of  forfeiture 477 

§  348.  Refusal  to  perform  the  duties  of  the  office 478 

§  349.  Acceptance  of  incompatible  office 479 

§  350.  Resignation  480 

§  351.  Power  of  removal  is  incidental  to  that  of  appoint- 
ment    483 

§  352.  Conditions  for  removal  fixed  in  the  Constitution.  .  485 

§  353.  Statutory  requirements  for  removal 487 

§  354.  What  is  not  removal 490 

§  355.  Power  to  remove  does  not  include  power  to  suspend  491 

§  356.  Impeachment   491 

CHAPTER  XI 

LIABILITIES 

§  357.  State  can  not  be  sued 494 

§  358.  Duplex  character  of  the  municipality 495 

§  359.  Liability  of  officers  judged  by  duties 495 

§  360.  Officers  are  such  only  when  complying  with  the  law  496 

§  361.  Unconstitutional  law  no  defense 497 

§  362.  Discretionary  or  ministerial  authority 498 

§  363.  Officers  with  discretion  not  ordinarily  responsible. .  499 
§  364.  Cases  showing  liability  or  non-liability  of  quasi- 
judicial  officers 500 

§  365.  Officer  is  liable  if  he  exceed  his  jurisdiction 503 

§  366.  Officer  is  liable  for  acts  not  covered  by  duty 505 

§  367.  Superior  officer  not  liable  for  torts  of  subordinates  506 

§  368.  When  superior  officer  is  liable  for  subordinate ....  507 

§  369.  Liability  as  to  contracts 508 

§  370.  Officer  not  ordinarily  liable  on  implied  authority.  510 

§  371.  When  officer  is  liable  on  contract 511 

§  372.  Application  to  health  officers 511 


CONTENTS  XXXlil 

§  373.  Liability  of  employees 514 

§  374.  Liability  of  city  for  performance  of  public  duties .  .   515 

§  375.  Liability  for  municipal  duties 519 

§  376.  Municipal  contracts,  liability  on 525 

§  377.  Respondeat  superior 528 

CHAPTER  XII 

LEGAL  REMEDIES 

§  378.  Civil  and  criminal  actions 529 

§  379.  Quo  warranto    532 

§  380.  Quo  warranto  not  to  restrain  official  excesses 536 

§  381.  Recovery  of  books  and  property,  mandamus  or 

replevin 536 

§  382.  Writ  of  prohibition  or  injunction 537 

§  383.  Certiorari 539 

§  384.  Mandamus    539 

CHAPTER  XIII 

VITAL  STATISTICS 

§  385.  An  index  of  healthfulness 542 

§  386.  National  control  ?   543 

§  387.  State  organization 544 

§  388.  Completeness  of  returns 544 

§  389.  Records  as  legal  evidence 546 

§  390.  The  physician  a  witness 550 

§  391.  Confidential  relationships    555 

§  392.  Morbidity  reports  555 

§  393    Tentative  reports 560 

PART  II 

SPECIAL  SUBJECTS 

CHAPTER  XIV 

QUARANTINE  AND  ALLIED  SUBJECTS 

§  401.  Origin  of  quarantine  570 

§  402.  Meaning  of  quarantine 571 


XXXIV  CONTENTS 

§  403.  Mechanics  of  quarantine 572 

§  404.  Quarantine  is  a  defensive  procedure 574 

§  405.  Quarantine  does  not  depend  upon  statute 576 

§  406.  "What  diseases  are  quarantinable  ? 581 

§  407.  Diagnosis 583 

§  408.  Quarantine  powers,  nation,  state,  municipality. . .  586 

§  409.  Quarantine  versus  commerce 593 

§  410.  Morbidity  reports  597 

§  411.  Inspection   598 

§  412.  Removal  of  cases 601 

§  413.  Pest  houses 604 

§  414.  Disinfection    610 

§  415.  Expense  of  quarantine 618 

§  416.  Vaccination    632 

§  417.  Control  of  insects  and  other  carriers 640 

§  418.  Personal  liability  for  communicating  disease 643 

CHAPTER  XV 

LICENSES 

§  420.  License  under  taxing  or  police  power  distinguished  650 

§  421.  License  under  police  power 651 

§  422.  Permits   652 

§  423.  Size  of  fee  655 

§  424.  How  license  is  granted 660 

§  425.  Medical  licensure    662 

§  426.  Medical  reciprocity 669 

§  427.  What  is  medical  practice  ? 673 

§  428.  Revocation  of  license 676 

CHAPTER  XVI 

WATER  SUPPLIES.      DRAINAGE  AND  GARBAGE  DISPOSAL 

Water 

§  430.  Natural  unity  of  problems  of  disposal  of  waste  with 

water  supply  681 

§  431.  State  and  municipal  relationship  contrasted 683 

§  432.  Duty  of  city  to  provide  water  supply 684 


CONTENTS  XXXV 

§  433.  Franchise  granted  to  private  corporations 686 

§  434.  Municipal  plants 689 

§  435.  Liability  of  municipality 690 

§  436.  State  supervision   694 

§  437.  Water  on  trains  and  boats  695 

Sewage 

§  440.  Municipal  sewage  problem   696 

§  441.  Sewer  a  nuisance 700 

§  442.  Jurisdiction    703 

§  443.  Relation  of  problems  to  natural  drainage 709 

Garbage 

§  450.  Garbage  as  a  municipal  problem 710 

§  451.  City  collection  715 

§  452.  Ankylostomiasis  or  the  hook-worm  disease 715 

CHAPTER  XVII 

PURE  FOOD  AND  DRUG  REGULATION 

§  460.  Two  standards  of  purity 718 

§  461.  Standard  fixed  by  legislation 720 

§  462.  Misbranding 721 

§  463.  Dealer  bound  to  know  quality 722 

§  464.  Serial  numbers   723 

§  465.  Commercial  motive  in  food  legislation 727 

§  466.  Regulation  of  milk  industry 731 

§  467.  Composition  of  the  product 742 

§  468.  Inspection 744 

§  469.  Confiscation    746 

§  470.  Poisonous  substances   748 

CHAPTER  XVIII 

INDUSTRIAL  REGULATION 

§  480.  Questionable  legislation  750 

§  481.  Necessity  for  accurate  studies 751 

§  482.  Increased  importance  754 

§  483.  Hours  of  labor 755 


XXXVI  CONTENTS 

§  484.  Buildings    761 

§  485.  Special  occupations 763 

§  486.  Industrial  regulation  should  be  definite 766 

CHAPTER  XIX 

SCHOOL  INSPECTION 

§  490.  Characteristics  of  medical  inspection  of  schools. . .  767 

§  491.  Injurious  effects  in  school  life 767 

§  492.  Authority  of  health  department  769 

§  493.  Medical  problems  in  education 771 

§  494.  Medical  inspection  normally  educational 773 

§  495.  School  nurse 774 

CHAPTER  XX 

EUGENICS 

§  500.  What  is  eugenics  ? 776 

§  501.  Eugenics  positive   777 

§  502.  Caste  universal   777 

§  503.  Mendel's  Law   778 

§  504.  Like  characters  in  parents  and  children  not  neces- 
sarily hereditary 779 

§  505.  Disease  not  hereditary 780 

§  506.  Ante-nuptial  examinations   782 

§  507.  Sterilization   785 

§  508.  Court  decisions  786 

§  509.  Reasonable  precautions 788 

§  510.  Galton  's  Law  of  Regression 791 

§  511.  Eugenics  versus  low  infant  mortality 792 

§  512.    Legislation  based  on  biology 793 

Index  of  cases 795 

Index 837 


Parti 

General  Principles 


LEGAL  PRINCIPLES 

OF 

PUBLIC  HEALTH 

ADMINISTRATION 


CHAPTER  I 


RELATIONSHIP  OF  PUBLIC  HEALTH  TO  BODY  POLITIC- 
TIFIC   BASIS   OF   PUBLIC   HEALTH  EFFORTS 


-SCIEN- 


§    1.  Health,  the  basis  of  success. 

§  2.  Necessity  for  public  health 
service. 

§  3.  Illustrative  results  of  health 
protection. 

§  4.  Governmental  or  commercial 
control. 

§  5.  Health  preservation  a  mo- 
tive for  municipal  organi- 
zation. 

§  6.  Science  of  public  health  of 
recent  origin. 

§  7.  Local  versus  state  supervi- 
sion. 

§  8.  Economic  changes  alter  prob- 
lems. 

§  9.  Municipal  control  limited  by 
nature  and  law. 

§  10.  Diversity  of  municipal  meth- 
ods causes  confusion. 

§  11.  Bacterial  problems  in  com- 
merce. 

§  12.  Advancement  of  science 
changes  legal  methods. 

§  13.  Legal  uncertainties  necessary 
for  advancement. 

§  14.  Reasonableness  of  action  im- 
portant. 


§  15.  Reasonableness  based  on 
facts. 

§  16.  Health  administration  dis- 
tinct from  medical  prac- 
tice. 

§  17.  Scope  of  health  service. 

§  18.  Epidemiology. 

§  19.  Koch 's  postulates. 

§  20.  Protozoa. 

§  21.  Action  of  bacteria. 

§  22.  Antitoxic  Sera. 

§  23.  Phagocytosis. 

§  24.  Changes  in  virulence. 

§  25.  Bacterial   antagonisms. 

§  26.  Entrance  of  bacteria  to 
body. 

§  27.  Insect   carriers  versus  hosts. 

§  28.  Animal  hosts. 

§  29.  Means  of  restricting  infec- 
tious diseases. 

§  30.  Disease  carriers,  human. 

§  31.  Reasonableness,  a  problem 
of  probabilities. 

§  32.  Reasonableness  of  requiring 
reports  of  infectious  dis- 
eases. 


2  PUBLIC    HEALTH   ADMINISTRATION 

§  1.  Health  the  basis  of  success.  Good  health  lies 
at  the  foundation  of  success,  either  for  the  individual, 
or  for  the  community.  It  matters  not  how  well  edu- 
cated a  man  may  be,  nor  how  amply  supplied  with  the 
coin  of  the  realm,  if  his  body  is  tortured  with  disease, 
or  if  his  brain  is  deadened  by  the  toxins  of  infection, 
his  activities  will  be  restrained,  and  his  usefulness  may 
be  paralyzed. 

We  are  told  that  in  1348  and  1349  about  one-half  of 
the  population  of  England  died  of  the  plague,  which 
was  spoken  of  as  the  Black  Death.  The  immediate  ef- 
fect of  this  calamity  was  to  decrease  the  demand  for 
the  products  of  the  land;  but  what  was  more  marked, 
and  more  lasting,  since  the  disease  attacked  especially 
the  laboring  portion  of  the  population,  wages  were 
greatly  raised,  so  that  the  profits  to  be  obtained  from 
the  land  were  decreased.  In  fact,  so  independent  did 
the  laborers  become,  and  so  extortionate  were  they  as 
to  wages,  that  special  laws  were  passed  limitive  to  the 
amount  of  wages  to  be  paid,  and  requiring  laborers  to 
work  when  offered  the  stipulated  wage.  Even  that 
statute  was  not  sufficient,  for  the  workmen  refused  to 
work  unless  they  were  given  such  pay  as  they  might 
demand,  and  many  fertile  estates  were  ruined. 

So,  too,  it  matters  not  how  rich  the  soil  of  a  country 
may  be,  nor  how  perfectly  the  air  may  be  fitted  for 
the  growing  of  crops,  if  the  region  is  so  beset  with 
disease  that  men  can  not  harvest  those  crops,  the  land 
is  valueless.  If  the  inhabitants  are  so  weakened  by 
malaria  or  tropical  anaemia  that  they  can  do  but  par- 
tial work,  the  money  value  of  the  land  is  reduced  pro- 
portionally. 

§  2.  Necessity  for  public  health  service.     The  two 


RELATIONSHIP    OF    PUBLIC    HEALTH    TO    BODY   POLITIC  3 

diseases  mentioned, — malaria  and  tropical  anaemia, 
are  very  good  illustrations  of  the  necessity  for  a  public 
health,  service.  Whereas  an  efficient  warfare  against 
dyspepsia,  for  example,  may  be  made  by  individual 
hygienic  effort,  malaria  must  be  met  by  a  cooperative 
campaign  for  the  greatest  success.  Measures  must  be 
taken  to  prevent  the  introduction  of  the  disease  into 
the  community,  by  either  excluding  patients,  or  by  ef- 
fectually protecting  them  from  the  bites  of  mosquitos; 
and  the  breeding  places  of  the  anopheline  mosquito 
must  be  exterminated,  or  rendered  unfavorable  for  the 
larvae.  Tropical  anaemia,  or  ankylostomiasis,  de- 
mands concerted  action  to  prevent  the  pollution  of  the 
soil  by  the  offending  worm.  (§  452.) 

§3.  Illustrative  results  of  health  protection.  The 
Suez  Canal  Company  built  a  model  city,  Ismailia,  for 
the  residence  of  its  officials,  and  for  the  chief  port.  It 
soon  had  a  population  of  10,000  souls.  Then  malaria 
appeared,  and  the  growth  of  the  place  was  checked. 
Port  Said  became  the  port.  Gradually  the  amount  of 
malaria  in  Ismailia  increased  until  in  1891,  2,500 
patients  were  there  treated  for  the  disease.  In  1902 
Major  Ross  of  the  British  Army  was  called  to  Ismailia 
to  study  the  conditions.  He  devised  plans  for  mos- 
quito extermination.  These  were  carried  out  at  the 
expense  of  the  Canal  Company.  Immediately  the  num- 
ber of  cases  of  malaria  decreased,  and  the  reports  for 
1906,  1907  and  1908  were  that  no  new  cases  had  de- 
veloped in  Ismailia.1  Cuba  was  ever  a  hotbed  of  dis- 
ease until  the  American  Army  eradicated  malaria  and 
yellow  fever.     The  construction  of  the  Panama  Canal, 

i  Ross,  1910,  p.  499  et  seq. 


4  PUBLIC    HEALTH   ADMINISTRATION 

or  of  the  Madeira-Mamore  railroad  in  Brazil  were  prac- 
tical impossibilities  until  science  demonstrated  how  the 
workmen  could  be  protected  from  malaria  and  yellow 
fever,  by  the  general  sanitary  precautions  of  the  con- 
struction force.  At  Ismailia,  and  on  the  Mamore  rail- 
road, the  sanitary  power  was  exerted  by  a  commercial 
corporation.  In  Panama  and  in  Cuba  the  authority 
was  governmental.  Whether  governmental  or  com- 
mercial, the  action  was  communal,  and  like  results  were 
only  possible  by  communal  action. 

Another  excellent  illustration  of  the  commercial 
importance  of  communal  sanitation  is  found  in  the 
experience  of  the  United  Fruit  Company,  which  has 
plantations  in  Cuba,  Nicaragua,  Spanish  Honduras, 
Costa  Rica,  Columbia,  etc.  When  this  company  began 
its  work  in  Panama  it  had  no  trained  sanitarians,  and 
not  less  than  eighty  per  cent  of  its  men  were  on  the  sick 
list.  About  1900  it  secured  sanitarians  from  the  far 
east.  The  death  rate  on  its  Panama  plantations  now 
is  about  7.5  per  1,0Q0.  The  company  adopted  rigid 
sanitary  rules.  It  assisted  in  founding  a  school  of 
tropical  medicine  at  New  Orleans  in  which  its  sani- 
tarians could  be  trained.  In  1913  it  opened  up  new 
fields  in  a  pestilential  section  of  Spanish  Honduras. 
The  sanitarians  were  sent  first  into  the  field  to  prepare 
the  way.  As  a  result  the  operations  during  the  first 
year,  with  the  building  of  250  miles  of  railroad,  and 
the  planting  of  50,000  acres  of  bananas,  showed  an 
amount  of  sickness  and  death  in  this  former  hotbed 
of  disease  comparing  favorably  with  that  of  an  agri- 
cultural section  in  the  United  States.  We  are  told 
further  that  during  1913  not  a  single  case  of  ' '  quaran- 
tinable"  diseases  occurred  on  any  of  its  plantations, 
at  any  of  its  ports,  or  upon  any  of  its  ships,  although 


RELATIONSHIP   OP   PUBLIC    HEALTH    TO    BODY   POLITIC  5 

both  plague  and  yellow  fever  were  present  at  various 
ports  on  the  Carribean  shores.1* 

§4.  Governmental  or  commercial  control.  Communal 
action  may  be  secured  through  the  agencies  of  govern- 
ment, either  national,  state,  sectional  (county),*  or 
municipal.  In  such  cases  the  action  should  be  in  con- 
formity with  established  law.  Corporations,  or  large 
landed  proprietors,  by  virtue  of  the  rights  of  owner- 
ship, have  authority  in  the  use  of  their  property  beyond 
that  which  the  state  might  compel.  The  communal  ac- 
tion might  therefore  arise  through  the  territorial  in- 
terest, as  in  the  case  of  the  Suez  Canal  Company,  or 
through  its  authority  over  its  employees.  An  illustra- 
tion of  the  latter  case  is  where  a  company  requires  all 
its  employees  to  be  vaccinated,  even  though  there  be  no 
statute  demanding  such  vaccination.  Either  of  these 
methods  has  its  influence  beyond  those  directly  af- 
fected, by  power  of  example,  and  thus  the  way  may 
be  paved  for  enactment.  Again,  communal  action  may 
result  through  voluntary  cooperation,  as  where  the 
residents  of  a  section  unite  to  drain  a  swamp. 

§  5.  Health  preservation  a  motive  for  municipal  or- 
ganization. This  necessity  for  cooperation  in  the  pro- 
tection of  the  public  health  furnishes  a  motive  for  or- 
ganizing municipal  corporations.2  It  has  been  claimed 
that  a  desire  to  protect  the  citizens  from  cholera  was 
a  prime  object  in  the  organization  of  the  township  of 
Chicago,  a  few  months  after  the  epidemic  of  1832.  The 
reason  for  this  surmise  is  that  among  the  earliest  ordi- 
nances passed  were  those  relating  to  sanitary  affairs.3 

i*  Adams,  Conquest  of  the  Tropics,  Chap.  XIV. 

2  Chicago  v.  Ice  Cream  Co.,  252  3  Moses  and  Kirkland,  Vol.   II, 

111.  311;  Elliott,  91.  p.  232. 


6  PUBLIC   HEALTH   ADMINISTRATION 

Dillon  says  of  police  powers  as  related  to  health : 4 
"This  is  indeed  one  of  the  chief  purposes  of  local  gov- 
ernment, and  reasonable  bylaws  in  relation  thereto 
have  always  been  sustained  in  England  as  within  the 
incidental  authority  of  corporations  to  ordain. " 

§  6.  Science  of  public  health  of  recent  origin.  The 
science  of  public  health  is  of  very  recent  origin,  though 
public  health  measures  have  long  been  recognized  and 
used.  Thus,  the  primitive  Mosaic  Code  contains  many 
such  provisions.  With  the  advance  of  the  science, 
methods  have  been  altered.  Formerly  cases  of  yellow 
fever  were  strictly  isolated  from  healthy  individuals, 
and  the  results  were  very  disappointing.  Today  the 
healthy  individuals  are  permitted  to  associate  freely 
with  the  sick,  but  the  patient  is  protected  from  the 
stegomyia  mosquito,  and  the  breeding  places  of  those 
insects  are  destroyed,  or  rendered  deadly  for  the  lar- 
vae. (§  400.)  Formerly  malaria  was  supposed  to  be 
the  result  of  some  miasm,  and  not  infectious.  Today  it 
is  known  that  the  disease  is  similar  to  yellow  fever 
in  production,  and  similar  means  are  used  for  its  con- 
trol. The  morbific  imps  who  spread  those  diseases 
laughed  at  fences  and  military  cordons,  but  they  are 
vanquished  when  the  bushes  are  cut  down,  when  ponds 
are  drained,  and  streams  are  trained,  and  stocked  with 
" millions "  fish;  and  when,  moreover,  necessary  re- 
ceptacles for  water  are  screened  effectually  or  treated 
with  petroleum  oil. 

§  7.  Local  versus  state  supervision.  Formerly  the  ef- 
forts at  the  restriction  of  disease  were  essentially  local 
in  nature  and  operation.    Local  nuisances  were  abated, 

*  Municipal     Corporations,    Sec. 
369. 


RELATIONSHIP  OF   PUBLIC    HEALTH   TO   BODY    POLITIC  7 

and  quarantine  was  simple,  though  inefficient.  Com- 
munities were  scattered,  and  the  intervening  spaces 
were  thinly  populated.  Travel  was  slow,  and  not  free- 
ly undertaken.  Today  a  man  may  contract  small  pox 
in  San  Francisco,  and  first  show  its  symptoms  in  Chi- 
cago or  New  York.  The  country  is  thickly  populated, 
and  an  infectious  disease  may  spread  through  a  large 
area  like  a  prairie  fire.  The  problems  are  general,  not 
local,  and  the  methods  which  are  successful  in  one 
locality  are  equally  useful  in  others.  Even  when  the 
actual  work  is  performed  by  municipal  or  town  officials, 
the  authority  therefor  may  better  be  derived  from  the 
state  or  nation,  and  it  is  essential  that  the  supervision 
should  be  by  officers  with  wide  jurisdiction. 

§  8.  Economic  changes  alter  problems.  Changes  in 
economic  conditions  have  altered  the  necessity  for  pub- 
lic health  supervision.  Whereas  formerly  the  cities 
were  relatively  small,  today  a  large  proportion  of  the 
population  is  crowded  within  urban  walls.  Formerly 
dairy  herds  were  small,  and  the  majority  of  people 
were  close  to  the  cows  from  which  the  milk  which 
they  consumed  was  obtained.  Today  the  milk  for  our 
large  cities  is  collected  from  a  wide  territory,  often 
embracing  several  states,  and  it  is  from  twenty-four 
to  sixty  hours  old  before  it  is  used.  (§423,466.)  This 
fluid  is  an  excellent  culture  medium  for  bacteria, 
though  their  growth  may  be  slow  at  first.  Bulletin  41, 
of  the  Hygienic  Laboratory  of  the  United  States  Public 
Health  and  Marine  Hospital  Service  gives  a  table5 
showing  the  multiplication  of  bacteria  in  milk  kept  at 
ordinary  room  temperature.     This  is  ordinary  milk 

5  p.  451. 


8  PUBLIC   HEALTH   ADMINISTRATION 

from  a  healthy  animal.  Starting  with  400  bacteria  per 
cubic  centimeter,  in  fourteen  hours  there  were  only 
500;  but  in  24  hours  the  number  had  reached  5,000. 
In  36  hours  the  number  had  reached  60,000;  48  hours, 
366,000;  and  in  60  hours,  780,000.  Since  many  diseases 
are  the  result  of  bacterial  action,  it  is  very  apparent 
that  the  danger  is  far  greater  in  the  use  of  old  milk 
than  in  that  which  is  fresh.  As  it  is  well  known  that 
typhoid  fever,  scarlet  fever,  diphtheria,  measles,  tuber- 
culosis, and  probably  other  diseases  are  often  spread 
through  the  agency  of  milk,  it  is  clear  that  the  length- 
ened time  between  the  cow  and  the  user  necessitates 
greater  care  and  cleanliness  in  the  handling  of  busi- 
ness. 

The  change  in  conditions  introduces  another  element 
of  danger.  Formerly  a  germ  dropped  in  a  pail  of  milk 
would,  even  if  given  time,  infect  only  a  few  gallons  at 
the  most.  Infection  on  a  dairy  farm  would  endanger 
only  a  few  families  in  a  limited  area.  Today,  the  large 
milk  companies  collect  the  fluid  in  bottling  establish- 
ments, and  a  single  infected  pailful  may  easily  infect 
several  carloads.  The  result  might  endanger  a  large 
population,  scattered  widely  through  urban  territory. 
This  demands  a  more  careful  supervision  than  was  re- 
quired before. 

The  man  who  buys  milk  from  his  next  door  neighbor, 
(who  thus  disposes  of  the  surplus  left  after  supplying 
his  own  family  from  the  cow  which  he  keeps  in  an  ad- 
jacent vacant  lot),  can  without  trouble  satisfy  himself 
as  to  the  degree  of  danger  which  he  thus  risks.  If  the 
children  of  the  owner  of  the  cow  be  ill  with  an  in- 
fectious disease,  the  neighborhood  knows  it.  If  the 
cow  be  sick,  or  if  she  be  kept  in  a  filthy  condition,  that 


RELATIONSHIP   OF    PUBLIC    HEALTH   TO    BODY   POLITIC  9 

is  discovered.  If  the  animal  be  fed  unwholesome  slop, 
it  is  not  difficult  for  the  milk  buyer  to  find  it  out.  Even 
when  the  dairy  farm  is  outside  of  the  village,  the 
villager  may  discover  for  himself  what  are  the  condi- 
tions of  milk  production.  With  the  increase  in  the  size 
of  the  milk  company,  with  the  greater  territory  covered 
by  the  collective  dairy  farm,  the  individual  user  can 
less  easily  guard  himself.  He  must  therefore  trust 
this  guardianship  to  the  agent  of  the  community,  the 
health  department. 

§  9.  Municipal  control  limited  by  nature  and  law.  A 
municipal  officer  has  authority  only  within  the  limits  of 
his  own  corporation,  but  he  may  easily  keep  posted  as 
to  conditions  in  the  immediate  neighborhood.  Local 
interests  may  often  serve  as  efficient  aids  in  upholding 
the  sanitary  requirements  for  dairies  even  outside  of 
the  territorial  jurisdiction  or  the  municipality.  "When, 
however,  the  dairy  farm  is  far  removed  from  the  con- 
sumer, not  only  does  the  municipal  official  have  no  au- 
thority over  the  milk  producer,  but  evidence  as  to  the 
conduct  of  the  farm  is  more  difficult  to  secure.  The 
special  danger  of  infection  may  not  be  learned  by  the 
municipal  authority  until  much  of  the  harm  has  re- 
sulted. The  commercial  interests  of  the  dairy  district 
may  combine  to  keep  hidden  the  evidence  of  disease. 
Such  a  course  is  not  wise,  and  it  may  result  in  much 
needless  suffering  and  loss  of  life.  It  is  wicked  moral- 
ly, if  not  criminal  legally,  and  it  may  prove  expensive 
in  the  end  for  the  offending  community.  Incredible  as 
it  may  seem,  such  conditions  do  sometimes  exist,  and 
serve  to  emphasize  the  necessity  for  a  general  super- 
vision of  sanitary  affairs  with  authority  wider  than 
municipal  boundaries.    (§  418.) 


10  PUBLIC   HEALTH   ADMINISTRATION 

§  10.  Diversity  of  municipal  methods  causes  con- 
fusion. The  same  dairy  district  may  supply  different 
municipalities,  and  each  may  by  ordinance  require  a 
different  method  of  handling  the  milk,  To  guard 
against  tuberculosis  one  corporation  may  require  that 
all  of  the  cattle  be  tested  regularly  with  tuberculin. 
Another  may  require  the  pasteurization  of  the  milk. 
The  resulting  confusion  may  be  avoided  when  the 
entire  territory  is  administerd  by  one  authority,  and 
under  a  single  code.  On  account  of  the  presence  of  an 
infectious  disease  in  a  dairy  district,  it  is  sometimes 
necessary  to  obtain  the  supply  from  another  territory. 
Under  the  system  of  municipal  control  such  a  shift  of 
trade  opens  the  door  to  new  dangers,  for  the  conditions 
in  the  new  district  can  hardly  be  determined  before 
the  change  is  made,  and  the  new  district  may  not  be 
prepared  to  comply  with  the  local  ordinances  of  the 
purchasing  municipality. 

§  11.  Bacterial  problems  in  commerce.  Formerly  the 
standards  as  to  milk  were  chemical,  and  they  were  such 
that  any  intelligent  customer  might  easily  learn  to 
apply  them  within  his  own  home.  The  value  of  coal 
for  fuel  depends  upon  its  purity.  The  value  of  milk 
as  food  depends  upon  the  proportion  of  butter  fat  and 
other  solids  contained,  and  this  value  is  decreased  if 
the  supply  be  watered.  If  the  coal  contains  gunpow- 
der it  may  prove  not  only  useless,  but  dangerous  as 
well.  Milk  containing  the  germs  of  disease  is  danger- 
ous to  the  community  where  it  is  consumed.  The 
bacilli  which  cause  diphtheria  are  known,  and  may  be 
recognized  when  met.  The  same  is  true  as  to  those  of 
typhoid  fever.  It  is  manifestly  impossible  to  examine 
all  of  the  milk  consumed,  and  a  thousand  samples 


RELATIONSHIP   OF    PUBLIC    HEALTH   TO    BODY    POLITIC  11 

might  be  tested  without  happening  to  discover  the 
germs  in  a  dangerously  contaminated  supply.  More- 
over, the  germ  which  causes  scarlet  fever,  for  example, 
is  not  as  yet  identified,  and  therefore  it  cannot  be  recog- 
nized in  milk.  For  this  reason  it  is  necessary  to  keep 
a  strict  watch  of  the  territory,  especially  to  discover 
cases  of  infection  which  might  contaminate  the  milk 
supply.  It  takes  several  days  after  infection  of  a  per- 
son for  disease  germs  to  multiply  sufficiently  to  pro- 
duce symptoms  of  illness.  A  pollution  which  produces 
one  case  is  likely  to  continue  for  some  time,  and  pro- 
duce more.  Any  method  chosen  by  a  municipality, 
therefore,  to  discover  and  control  such  infections  with- 
in its  own  boundaries  must  result  in  a  large  number 
of  cases  which  become  infected  before  the  first  case 
shows  symptoms.  It  is  therefore  a  practical  neces- 
sity that  the  infection  be  prevented  by  excluding  the 
dangerous  milk  before  it  does  harm.  This  can  only  be 
done  by  keeping  representatives  in  the  dairy  district 
as  detectives.  These  detectives  must  have  a  technical 
education  for  the  work.  If  they  are  armed  also  with 
authority  over  the  local  sanitary  district  in  which  they 
work,  they  may  thus  prevent  harm  being  done  by  mis- 
guided or  dishonest  persons.  "When  a  supply  of  milk 
has  been  refused  admission  on  account  of  infection,  it 
has  sometimes  entered  a  city  surreptitiously  by  some 
other  route.  With  authority  upon  the  farm,  the  offi- 
cial could  order  the  destruction  of  the  milk  until  the 
source  of  danger  could  be  removed.    (§  466.) 

§  12.  Advancement  of  science  changes  legal  methods. 
The  advancement  made  in  the  science  of  public  health 
has  in  another  way  necessitated  changes  in  administra- 
tion.    Small-pox  has  long  been  recognized  in  the  com- 


12  PUBLIC   HEALTH   ADMINISTRATION 

moil  law  as  a  nuisance.  (§  202.)  Reasonable  measures 
pertaining  to  the  restriction  of  that  disease  have  al- 
ways been  supported  in  the  courts,  even  though  private 
property  were  invaded,  and  property  rights  were  in- 
volved. Malaria  was  formerly  supposed  to  be  a  mis- 
fortune, and  it  is  not  therefore  recognized  as  a  com- 
mon law  nuisance.  Now  science  has  demonstrated  that 
malaria  may  be  even  a  more  dangerous  nuisance  than 
small-pox,  for  the  reason  that  it  is  more  easily  spread 
through  a  community. 

Unfortunately  there  are  many  members  of  the  medi- 
cal profession  who  have  not  kept  pace  with  the  ad- 
vances made  in  science.  In  the  absence  of  specific  leg- 
islation, if  a  health  administrator  entered  private 
premises  and  there  destroyed  the  breeding  places  of 
the  mosquitos,  he  might  be  brought  to  trial  for  tres- 
pass, or  for  injury  to  property.  Because  it  would  not 
be  difficult  to  find  medical  men  with  large  practices, 
who  would  question  or  ridicule  the  mosquito  theory  of 
causation,  it  is  not  unlikely  that  a  lay  jury  might  find 
for  the  plaintiff,  and  that  the  health  official  would  be 
punished  for  doing  his  duty.  It  is  therefore  more 
necessary  than  formerly  that  the  operations  of  health 
departments  be  definitely  prescribed  and  defined  by 
statutory  enactment. 

Manifestly,  because  of  the  intimate  sanitary  relation- 
ship between  adjoining  municipalities,  it  is  quite  es- 
sential that  these  statutes  should  be  uniform.  Such 
uniformity  is  impossible  if  the  enactment  be  left  to  the 
different  municipalities  themselves.  Recognizing  that 
the  problems  of  a  metropolis  differ  from  those  of  a 
small  country  community,  statutes  should  be  passed  by 
the  state,  making  the  administration  uniform  for  places 


RELATIONSHIP   OF   PUBLIC    HEALTH    TO    BODY   POLITIC  13 

of  like  character.  The  relationship  of  the  nation, 
state  and  municipality  to  sanitary  matters  will  be  con- 
sidered from  a  legal  standpoint  in  a  subsequent  chap- 
ter.* From  a  scientific  point  of  view  it  seems  that  many 
matters  can  only  be  satisfactorily  handled  by  the  na- 
tional government.  At  present  the  government  has 
taken  control  of  the  standardization  of  antitoxins ;  that 
is,  as  a  commercial  proposition,  but  in  the  interest  of 
health,  the  government  has  assumed  to  regulate  the 
manufacture  of  antitoxins  by  private  firms,  so  that  the 
user  may  know  the  exact  strength,  as  far  as  is  possible, 
of  the  article  which  he  uses.  An  initial  dose  of  1,000 
units  of  antitoxin  (§22)  is  useless  in  a  case  of  diph- 
theria, but  until  the  government  took  charge  of  the 
matter  a  package  labeled  5,000  units  might  in  reality 
be  only  one-fifth  of  its  apparent  strength.  Adjacent 
states  may  be  unequally  interested  in  the  purity  of  the 
waters  of  a  river  forming  a  boundary,  or  flowing  from 
one  into  the  other.  Many  of  the  problems  of  health  are 
involved  in  interstate  commerce  of  food  stuffs.  From 
the  standpoint  of  science,  therefore,  the  nation  should 
have  supreme  authority  in  matters  of  health.  The  state 
should  act  in  a  subordinate  capacity,  and  the  munici- 
pality should  be  limited  to  dealing  with  questions  of  a 
purely  local  character. 

§  13.  Legal  uncertainties  necessary  for  advancement. 
We  sometimes  hear  of  "the  uncertainties  of  the  law." 
The  expression  is  used  almost  with  contempt,  and  the 
implication  is  clearly  that,  in  the  opinion  of  the 
speaker,  the  courts  are  influenced  in  their  judgments 
by  personal  interests,  either  social  or  financial.  It 
must  be  recognized,  however,  that  the  very  strength 

*  Chapter  IX. 


14  PUBLIC   HEALTH   ADMINISTRATION 

and  safety  of  the  law  is  coupled  with  these  uncertain- 
ties. If  it  were  inalterably  fixed,  the  only  possibility 
of  advancement  would  be  in  revolution,  and  a  new 
beginning.  Law  must  be  interpreted,  whether  com- 
mon, constitutional,  or  statutory,  not  alone  in  accord- 
ance with  the  state  of  knowledge  prevalent  when  the 
law  was  created,  but  in  the  light  of  the  present  degree 
of  advancement  in  civilization.  Just  as  a  word,  or 
sentence,  is  changed  in  meaning  by  a  change  in  its 
context,  so  the  meaning  of  facts  or  conditions  is 
changed  by  the  state  of  intellectual  advancement.  An 
act  committed  by  a  mentally  responsible  person  may  be 
a  crime;  though  the  same  act  committed  by  a  child, 
or  by  an  individual  rendered  irresponsible  by  disease, 
would  be  no  crime. 

§  14.  Reasonableness  of  action  important.  In  con- 
struing statutes,  ordinances,  and  administrative  orders, 
the  courts  must  consider  the  reasonableness  of  the  act 
contemplated.  (§31.)  Measures  which  would  have 
been  perfectly  reasonable  in  the  light  of  the  knowledge, 
or  lack  of  knowledge,  of  a  score  of  years  ago,  for  the 
control  of  yellow  fever,  would  today  be  deemed  unrea- 
sonable. It  is  no  longer  necessary,  as  it  was  formerly 
thought  needful,  to  destroy  an  infected  house  to  check 
the  disease.  Today  it  is  only  required  to  kill  the 
infected  mosquitoes  by  fumigation,  and  to  destroy,  or 
render  unfavorable,  the  breeding  places  for  stegomyia 
mosquitoes  in  the  vicinity. 

On  the  other  hand,  when  it  was  supposed  that 
malaria  was  due  to  a  miasm  exhaled  from  the  soil, 
an  order  requiring  the  confining  of  patients  within 
mosquito  proof  structures,  especially  at  night,  would 
have   been  regarded   as   so   very   impracticable   and 


RELATIONSHIP   OF   PUBLIC    HEALTH    TO    BODY   POLITIC  15 

unreasonable,  that  it  is  doubtful  if  any  court  would 
have  sustained  the  legality  of  the  act.  It  therefore 
follows  that  the  fundamental  law  must  be  flexible  in  its 
application,  and  it  must  be  changed  in  form  accord- 
ing to  conditions. 

§  15.  Reasonableness  based  on  facts.  The  reason- 
ableness of  a  statute  must  not  rest  upon  the  wish  of 
any  one  man,  or  class  of  men.  Neither  can  it  depend 
upon  the  degree  of  education,  or  of  mental  develop- 
ment of  the  person  to  be  coerced.  (§§31,  170.)  The 
insane  man  is  confined  in  an  institution,  though  he  can 
not  realize  the  necessity  therefor.  The  dairy  man,  who 
opposes  the  modern  methods  of  sanitary  milk  produc- 
tion, may  through  ignorance  affirm  that  what  was  good 
enough  for  his  father  is  good  enough  for  himself,  but 
his  idea  of  reasonableness  would  have  little  influence 
with  an  intelligent  court.  Neither  is  the  degree  of 
reasonableness  to  be  decided  by  the  state  of  the  average 
knowledge  of  the  community.  In  a  mill  village  com- 
posed almost  entirely  of  uneducated  operatives,  it 
might  easily  be  possible  that  an  overwhelming  majority 
would  consider  a  sanitary  regulation  unreasonable, 
though  the  court  would  uphold  its  reasonableness.  In 
forming  its  judgment,  the  court  is  guided,  not  by  the 
general  consensus  of  opinion,  but  by  the  sentiment  of 
those  whom  it  considers  best  qualified  to  form  a  deci- 
sion upon  that  specific  question.  So  in  sanitary  matters 
the  court  should  be  guided  by  the  authority  of  those 
especially  versed  in  this  particular  branch  of  learning. 

§  16.  Health  administration  distinct  from  medical 
practice.  In  a  question  relative  to  the  construction  of 
a  bridge,  the  opinion  of  a  structural  engineer  would  be 
sought,  not  that  of  a  mining  engineer.    Public  health 


16  PUBLIC    HEALTH   ADMINISTRATION 

is  a  function  of  what  is  now  called  preventive  medi- 
cine, not  of  medical  treatment.  The  practitioner  of 
medicine  only  gets  his  opportunity  when  preventive 
medicine  has  failed  to  obtain  full  results.  The  public 
health  administration  has  nothing  to  do  with  the  treat- 
ment of  cases,  further  than  is  necessary  for  the  restric- 
tion of  infectious  diseases. 

This  distinction  is  often  overlooked.  It  is  true  that 
in  some  places  it  is  necessary  incidentally  for  the 
health  department  to  establish  hospitals,  in  order  that 
the  people  may  have  intelligent  medical  treatment. 
Such  instances  are  relatively  rare,  and  are  limited 
largely  to  frontier  or  colonial  localities.  The  habit  of 
thought,  and  the  methods  of  action,  as  well  as  the  basal 
principles  of  preventive  medicine  are  very  different, 
and  often  directly  opposed  to  the  ordinary  practice  of 
medicine.  Preventive  medicine  is  often  more  closely 
associated  with  certain  engineering  problems  than  with 
medical  practice;  and  in  America  engineering  schools 
are  devoting  attention  to  the  subject  of  public  health 
to  a  degree  equal  to,  or  exceeding  that  given  by  medical 
colleges. 

The  course  of  study  proposed  by  the  Council  on 
Medical  Education  of  the  American  Medical  Associa- 
tion practically  ignores  preventive  medicine.  The 
result  is  that  the  average  medical  practitioner  knows 
very  little  of  the  science  of  public  health,  and  his 
opinion  on  the  problems  is  often  very  far  from  correct. 
A  question  of  public  health  administration  was  lately 
submitted  to  two  medical  advisers  of  a  university  cor- 
poration. One  was  a  prominent  authority  on  the  prac- 
tice of  medicine,  and  the  dean  of  one  of  the  leading 
medical  schools.    The  other  was  a  professor  of  chem- 


RELATIONSHIP   OF   PUBLIC    HEALTH    TO    BODY    POLITIC  17 

istry,  also  with  a  wide  reputation.  They  united  in  an 
opinion,  which  was  based  upon  premises,  every  one 
of  which  was  wrong.  They  supposed  that  the  law  was 
different  from  what  it  was.  They  presumed  the  facts 
would  follow  the  supposed  law — widely  varient  from 
the  actual  conditions;  and  they  underestimated  the 
dangers,  as  was  shown  by  the  results. 

Though  the  preliminary  training  of  medical  prac- 
titioners fits  them  for  acquiring  proficiency  in  pre- 
ventive medicine,  very  few  take  the  trouble.  The 
reason  is  commercial.  It  is  necessary  for  most  men  to 
devote  attention  to  that  which  will  support  their  fami- 
lies. In  the  United  States  today  people  are  perfectly 
willing  to  pay,  and  pay  liberally,  for  the  treatment 
and  cure  of  disease  when  it  has  fastened  itself  upon 
the  individual.  They  pay,  not  in  proportion  to  the 
service  rendered,  but  largely  according  to  the  time 
consumed  by  the  practitioner.  The  real  service  ren- 
dered is  to  be  estimated  by  the  saving  in  time  and 
usefulness  for  the  patient.  If  a  sickness  of  a  month 
could  be  cut  down  to  one  day  the  saving  would  really 
be  the  value  to  the  patient  of  twenty-nine  days;  but  the 
pay  to  the  practitioner  for  the  saving  twenty-nine  days 
is  only  one  thirtieth  of  what  he  would  receive  for  a 
month's  service.  In  private  practice  it  does  not  pay 
to  study  preventive  medicine.  There  is  no  incentive. 
Men  are  not  willing  to  pay  anything,  as  a  rule,  to  be 
kept  well.  To  a  great  extent  the  same  is  true  as  to 
communities,  and  health  administrators  are  poorly 
compensated.  Far  too  frequently  the  result  is  that  the 
service  is  in  proportion  to  the  amount  contributed.  It 
follows,  therefore,  that  questions  of  health  administra- 
tion, questions  relative  to  the  reasonableness  of  pro- 


18  PUBLIC    HEALTH   ADMINISTRATION 

posed  action,  should  be  determined  by  those  skilled  in 
the  study  of  health  administration,  and  not  by  laymen, 
nor  by  the  general  practitioner  of  medicine,  unedu- 
cated in  this  special  branch. 

§  17.  Scope  of  health  service.  The  sphere  of  public 
health  service  is  to  so  protect  the  lives  and  health  of 
the  citizens  that  their  usefulness  may  be  increased  and 
the  value  of  the  property  may  be  raised.  It  has  to  do 
with  vital  statistics,  by  which  the  profit  and  loss  of 
the  business  can  be  gauged.  It  deals  with  law,  in  that 
the  rights  of  property  and  persons  must  be  guarded. 
It  must  depend  largely  upon  engineering  for  the  safe 
solution  of  many  of  its  problems.  It  presupposes  a 
wide  acquaintance  with  industrial  and  economic  con- 
ditions, that  harm  may  be  anticipated  and  prevented. 
It  must  give  much  of  its  attention  to  epidemiology 
which  teaches  how  infectious  diseases  are  spread 
through  communities.  It  must  determine,  and  remove 
the  cause  of  disease. 

Suppose  that  a  patient  be  ill  as  the  result  of  some 
poisonous  article  of  diet.  Whereas  the  medical  prac- 
titioner need  consider  little  outside  of  the  patient's 
room,  it  is  incumbent  upon  the  ideal  health  depart- 
ment to  determine  what  was  the  particular  article 
which  wrought  harm.  Secondly,  was  the  poison 
inherent  in  the  article,  or  was  it  the  result  of  some 
change  which  had  taken  place  after  it  had  been  pro- 
duced? If  due  to  change,  what  caused  the  change?  In 
a  small  epidemic  of  typhoid  fever  it  was  found  that 
each  of  the  patients  had  recently  eaten  celery  pur- 
chased in  a  certain  store.  There  was  no  other  factor 
which  could  be  found  common  to  all  of  the  patients. 
That  celery  was  traced  through  the  wholesaler  to  the 
marsh  on  which  it  was  grown,  in  another  state.    Then 


RELATIONSHIP   OF    PUBLIC    HEALTH    TO    BODY   POLITIC  19 

it  was  discovered  accidentally  that  there  were  cases 
of  typhoid  fever  among  the  residents  of  that  marsh. 
§  18.  Epidemiology.  Epidemiology  has  to  do  chiefly, 
or  wholly,  with  two  classes  of  infectious  diseases, 
which  have  much  in  common.  Such  diseases  are  the 
result  either  of  the  action  of  microscopic  plants,  called 
bacteria,  or  of  minute  forms  of  animal  life  known  as 
protozoa.  While  admitting  the  possibility  that  a  com- 
munity may  sometimes  be  made  ill  by  some  change  in 
the  chemical  composition  of  the  common  water  supply, 
which  might  produce  an  epidemic  of  intestinal  dis- 
order, such  occurrences  are  rare,  and  unimportant, 
unless  associated  with  biologic  infection.  The  specific 
forms  of  the  organisms  which  produce  many  diseases 
are  well  known,  and  their  life  history  has  been  care- 
fully studied.  In  other  cases,  though  we  may  know 
much  about  them,  as  yet  they  have  escaped  identifica- 
tion. The  forms  which  cause  poliomyelitis,  sometimes 
called  infantile  paralysis,  are  so  small  that  they  are 
enabled  to  pass  through  a  stone  filter.  They  are  too 
small  to  be  seen  by  the  most  powerful  microscope, 
though  by  means  of  the  ultramicroscope  they  have 
recently  been  discovered  and  described.  Evidence 
seems  to  show  that  they  may  gain  admission  to  the 
body  through  dust,  or  by  food,  and  certain  flies  have 
served  as  carriers.  The  germ  of  small-pox  is  probably 
protozoal,  though  it  has  not  been  absolutely  identified; 
that  for  scarlet  fever  is  evidently  bacterial,  though  it 
has  not  been  surely  differentiated.  The  terms  bacillus, 
coccus,  and  spirilla  are  used  to  describe  the  forms  of 
the  different  families  of  bacteria.  A  bacillus  is  a  short 
rod;  the  coccus  is  round  or  eliptical;  and  the  spirilla 
is  a  corkscrew,  thread-like  form.    Many,  and  perhaps 


20  PUBLIC    HEALTH    ADMINISTRATION 

all  disease  producing  bacteria  grow  in  nature  outside 
of  the  animal  body,  and  they  gain  admission  to  the 
body  by  inhalation,  by  direct  contact,  or  in  food. 

§19.  Koch's  postulates.  Professor  Koch,  the  dis- 
tinguished German  pathologist,  who  has  done  very 
much  towards  the  solution  of  the  question  as  to  the 
causation  of  infectious  diseases,  formulated  four  postu- 
lates, as  demonstrable  proof  that  a  certain  disease  is 
the  product  of  a  certain  germ.  These  postulates  are 
in  their  full  form  applicable  at  present  to  bacteria 
only,  because  of  the  inability  of  growing  most  protozoa 
in  pure  culture. 

First,  the  bacterium  must  be  found  in  the  body  or 
discharges  of  a  person  ill,  or  dead  of  the  disease. 

Secondly,  this  germ  must  be  grown  in  pure  culture, 
that  is  unmixed  with  other  germs. 

Thirdly,  that  bacterium,  grown  in  pure  culture,  when 
introduced  into  a  perfectly  healthy  individual,  whose 
blood  and  discharges  showed  no  previous  trace  of  the 
particular  form  of  germ,  must  be  followed  by  a  typical 
case  of  the  illness. 

Fourthly,  the  particular  germ  must  thereafter  be 
recovered  from  the  body  or  discharges  of  the  person 
thus  made  ill. 

Such  observations,  many  times  repeated  with  the 
same  results  in  each  disease,  form  a  demonstration 
which  cannot  be  questioned,  especially  when  other 
germs  fail  to  produce  the  typical  symptoms. 

§  20.  Protozoa.  In  the  case  of  protozoal  diseases  the 
proof  is  slightly  different.  Take  the  case  of  malaria, 
for  example.  There  are  three  principal  forms  of 
malarial  fever.  It  is  found  that  there  are  three  dis- 
tinct kinds  of  protozoal  bodies  in  the  blood  of  malarial 


RELATIONSHIP   OF    PUBLIC    HEALTH    TO    BODY   POLITIC  21 

patients.  Each  form  of  the  fever  has  its  peculiar  form 
of  the  Plasmodium;  and  each  form  of  Plasmodium  has 
its  peculiarities  of  development.  The  plasmodia  free 
in  the  blood  serum  enter  the  red  blood  corpuscles,  and 
there  grow  until  they  are  ready  for  division  into  many 
cells.  Each  form  has  its  peculiar  number  of  days 
for  this  multiplication.  When  the  division  occurs 
the  red  blood  corpuscle  is  ruptured,  permitting  the 
escape  of  the  newly  formed  plasmodia.  Since  all  of 
the  generations  resulting  from  a  single  infection  are 
timed  alike,  when  one  Plasmodium  divides,  all  in  the 
body  are  likely  to  divide  at  the  same  time.  It  is  found 
that  this  division  corresponds  exactly  with  the  time 
of  the  chill  of  the  disease,  followed  by  the  fever.  It  is 
found  further,  that  a  man  weighing  142  pounds  will 
not  show  the  fever  until  he  has  about  150,000,000  plas- 
tids  (the  newly  formed  protoza)  free  in  his  blood  at  one 
time.  When  the  plasmodia  are  numerous  in  the  blood 
of  a  man  he  will  be  found  to  show  symptoms  of  the 
disease.  When  the  plasmodia  are  few  there  is  no  evi- 
dence of  the  disease.  Then  too  these  plasmodia  have 
been  traced  through  their  development  in  the  bodies 
of  the  mosquitoes,  and  the  mosquitoes  have  been  experi- 
mented with.  It  has  been  found  that  patients  living  in 
malarious  countries,  do  not  get  the  malaria  when  pro- 
tected from  the  mosquitoes.  On  the  contrary,  infected 
mosquitoes  sent  to  non-malarious  countries,  and  there 
permitted  to  bite  healthy  men,  have  thus  produced  the 
disease  where  it  had  never  before  been  known.  Such 
are  some  of  the  cumulative  evidences  as  to  the  causa- 
tion of  diseases. 

§  21.  Action    of    bacteria.     When    pathogenic,    or 
disease  producing  bacteria  are  introduced  into  the  body 


22  PUBLIC    HEALTH    ADMINISTRATION 

of  a  susceptible  animal,  they  there  multiply.  As  a  con- 
sequence of  their  growth  certain  poisons  are  developed. 
These  poisons  are  specific  to  the  peculiar  germ,  and  are 
called  toxins.  The  toxin  of  the  diphtheria  bacillus  is 
excreted  by  the  germ;  that  of  typhoid  is  secreted,  and 
only  set  free  by  the  destruction  of  the  germ,  apparently. 
The  symptoms  of  the  disease,  with  few  exceptions,  are 
not  produced  directly  by  the  germ,  but  indirectly,  from 
the  action  of  the  poison.  The  presence  of  the  toxin 
in  the  system  of  the  animal  stimulates  the  formation 
of  another  chemical  substance  which  neutralizes  the 
toxin.  This  neutralizing  chemical  substance  is  called 
an  antitoxin,  and  it  is  specific  for  each  particular  germ. 
That  for  diphtheria  is  active  to  neutralize  the  effect 
of  the  toxin  of  diphtheria,  but  practically  powerless 
against  the  toxin  of  lockjaw;  and  vice  versa.  As 
ordinarily  used  the  antitoxin  is  suspended  in  the  serum 
of  a  horse 's  blood.  Under  strict  antiseptic  precautions, 
and  with  great  care  to  prevent  other  infections,  the 
horse  is  treated  with  repeated  injections  of  the  toxin, 
until  he  has  developed  an  enormous  degree  of  protec- 
tion against  that  particular  toxin.  Then  his  blood  is 
drawn,  and  the  serum  separated,  containing  the  anti- 
toxin. 

§  22.  Antitoxic  sera.  When  serum  thus  prepared  is 
introduced  into  the  body  of  a  patient  sick  with  the 
disease  it  tends  to  neutralize  the  poison  and  thus  to 
cure  the  patient.  When  introduced  in  sufficient  quan- 
tities before  the  introduction  of  the  germ,  the  symptoms 
of  the  disease  do  not  show  themselves.  It  has,  there- 
fore, been  a  well  recognized  practice  in  preventive 
medicine  to  use  these  protective  injections  of  the  anti- 
toxin.    It  is  found,  however,  that  the  antitoxin  has 


RELATIONSHIP   OF   PUBLIC    HEALTH    TO    BODY   POLITIC  23 

little  or  no  bacterocidal  power.  It  does  not  directly 
kill  the  germs.  It  only  neutralizes  the  poison,  and  thus 
gives  nature  time  in  which  to  destroy  the  germs.  As  a 
public  health  measure  this  use  of  the  antitoxin  must 
therefore  be  condemned.  As  a  personal  protection  it 
may  be  advisable.    (See  §  25.) 

§  23.  Phagocytosis.  Nature  also  fights  the  disease 
by  direct  destruction  of  the  bacteria.  This  is 
accomplished  through  the  agency  of  cells  called 
''phagocytes,"  and  the  process  is  technically  termed 
"phagocytosis."  The  phagocytic  cells,  which  include 
certain  cells  found  in  the  glands  of  the  body  and  in  the 
deeper  portions  of  the  skin,  as  well  as  the  white  blood 
corpuscles,  engulf  and  digest  various  proteid  bodies 
including  the  bacteria,  as  a  normal  portion  of  their 
nutrition.  They  are  the  real  curative  agencies  of  the 
body,  for  they  destroy  the  causes  of  the  diseases.  It 
is  found  that  this  phagocytic  power  varies  greatly 
between  two  individuals,  and  between  different  diseases 
in  the  same  person  at  a  given  time,  and  between  dif- 
ferent times  in  the  same  person,  with  reference  to  a 
given  disease.  For  example,  in  a  given  individual  at 
a  certain  time  this  power  may  be  weak  for  the  typhoid 
germ,  but  strong  for  diphtheria  or  tuberculosis.  The 
strength  of  the  power  is  found  by  estimating  the 
number  of  bacteria  which  are  engulfed  by  the  white 
blood  corpuscles  in  a  given  time,  and  this  proportion 
is  called  the  "opsonic  index."  The  power  may  be 
stimulated,  often  very  greatly,  by  injections  of  killed 
bacterial  cultures  into  the  body.  This  process,  some- 
times inappropriately  called  "bacterial  vaccination," 
is  therefore  used  as  a  curative  measure,  and  it  is  also 
a  well  recognized  method  of  prevention.    In  typhoid 


24  PUBLIC    HEALTH   ADMINISTRATION 

fever,  for  example,  by  giving  three  injections,  under 
proper  conditions,  the  average  individual  is  rendered 
practically  immune  to  the  disease  for  a  period  of  three 
years,  and  perhaps  more.  The  treatment  is  not  at  all 
dangerous,  either  to  the  health  or  life  of  the  person, 
and  is  a  well  recognized  method  for  the  restriction  of 
certain  diseases.  This  "bacterin"  treatment  is 
specific;  that  is,  the  injection  of  the  typhoid  bacilli, 
killed,  is  a  protective  measure  only  against  typhoid 
fever.  This  treatment  is  not  as  yet  a  well  recognized 
protective  against  all  bacterial  diseases,  and  it  is  of 
doubtful  value  with  reference  to  protozoal  diseases. 

§  24.  Changes  in  virulence.  The  virulence  of  strains 
of  bacterial  cultures  may  be  raised  or  lowered  in 
laboratory  work.  So  too,  the  virulence  may  be  altered 
by  passage  through  animals  of  different  species.  Thus, 
the  bacillus  of  tuberculosis  differs  in  character,  and  in 
effect  in  different  species.  That  found  in  birds  differs 
from  that  in  cattle,  and  both  differ  from  the  human 
type.  Apparently  the  bovine  type  is  much  more  dan- 
gerous for  cattle  than  for  man,  and  to  a  degree  an 
infection  with  the  bovine  type  may  assist  in  rendering 
the  human  being  immune  to  the  human  form  of  the 
germ;  but  as  yet  this  protection  by  inoculation  with 
attenuated  living  bacteria  is  of  very  doubtful  value, 
and  it  may  well  be  exceedingly  dangerous.  It  is  not, 
therefore,  as  yet  a  justifiable  process  for  preventive 
medicine. 

In  protozoal  diseases,  on  the  contrary,  this  method 
of  protection  is  well  recognized,  though  not  as  yet  of 
universal  application.  It  is  probable  that  the  germ  of 
small-pox  is  essentially  identical  with  that  of  cow-pox. 
Vaccination  with  the  cow-pox  genu  tends  to  protect 


RELATIONSHIP   OF   PUBLIC    HEALTH   TO    BODY   POLITIC  25 

the  human  being  from  the  small-pox.  This  is  an 
acknowledged  scientific  fact,  which  is  not  disputed  by 
scientific  men,  and  is  amply  proven  by  statistics, 
though  sometimes  disputed  by  unscientific  objectors 
from  superficial  examinations.  The  virus  for  use  in 
vaccination  is  now  prepared  in  this  country  under  a 
general  supervision  of  the  national  government. 
Selected  animals  are  carefully  examined;  and  after 
isolation  and  under  strict  aseptic  conditions  they  are 
vaccinated.  When  the  blisters  have  developed  the 
serum  is  withdrawn  and  prepared  for  use.  It  is  then 
tested,  to  make  sure  that  it  has  not  been  contaminated 
by  other  disease  germs.  Often  the  calf  from  which  it 
was  taken  is  killed,  and  examined  post  mortem,  for  evi- 
dence of  other  disease.  If  evidence  of  other  infection 
be  discovered,  the  virus  must  be  destroyed.  Under 
such  precautions,  vaccination  properly  performed,  is 
without  danger,  and  is  a  well  recognized  method  of 
protection. 

Similarly,  dourine  is  a  disease  which  is  very  fatal 
to  horses,  usually  killing  them  within  a  year  at  most. 
Experiments  made  on  the  Canal  Zone  by  officers  of  the 
government,  indicate  that  this  disease,  which  is  also 
protozoal,  may  be  controlled  hj  a  species  of  vaccina- 
tion. Two  mules  were  inoculated  with  disease  germs 
which  had  been  attenuated  by  passing  the  strain 
through  guinea  pigs.  The  mules  went  through  the 
disease,  and  the  trypanosomes  of  the  disease  disap- 
peared from  their  blood.  Inoculations  with  virulent 
cultures  of  the  germ  later  failed  to  infect  the  animals. 
So,  too,  hydrophobia,  which  is  also  protozoal  in  origin 
probably,  is  cured  and  prevented  by  injections  of  cul- 
tures  of  the   germ   which  have   had   their  virulence 


26  PUBLIC   HEALTH    ADMINISTRATION 

reduced  by  drying.    This  is  also  a  well  recognized  pro- 
tective measure. 

§  25.  Bacterial  antagonisms.  Nature  has  everywhere 
arranged  for  antagonistic  agents.  It  is  well  known 
that  milk  when  left  to  itself  sometimes  sours  and 
remains  sour  for  a  long  time  without  becoming  rancid. 
At  other  times  the  rancidity  develops  early.  At  still 
other  times  it  becomes  putrid  without  having  soured 
perceptibly.  The  acidity  is  due  to  the  action  of  yeasts 
or  bacteria.  The  putrefaction  is  also  due  to  the  action 
of  the  bacteria.  It  is  found  that  if  the  milk  be  arti- 
ficially inoculated  with  a  pure  culture  of  the  lactic 
acid  bacillus,  the  putrefactive  bacteria  are  unable  to 
thrive.  This  bacterial  antagonism  is  applicable  in 
public  health  work.  The  lactic  acid  germ  is  harmless 
for  the  human  being,  and  it  is  antagonistic  to  the 
bacillus  of  diphtheria,  and  to  the  meningococcus  which 
produces  the  epidemic  meningitis.  As  a  protective 
measure  all  persons  exposed  to  either  of  these  diseases 
should  have  their  throats  and  noses  sprayed  with  a 
culture  of  the  lactic  germ.  It  has  been  customary  to 
use  injections  of  the  diphtheria  antitoxin  as  a  pro- 
tective against  the  diphtheria.  Sanitary  advances 
indicate  that  such  injections  are  no  longer  reasonable 
or  best.  It  is  true  that  they  are  curative,  in  that  the 
evidences  of  the  disease  so  far  as  symptoms  are  con- 
cerned are  removed ;  but  they  do  not  kill  the  germ,  and 
therefore  they  may  serve  to  hide  the  source  of  trouble. 
By  retarding  or  suppressing  the  disease  symptoms  they 
may  permit  nature  to  destroy  the  germs,  but  in  the 
case  of  those  exposed  to  the  disease,  but  not  actually 
sick,  they  may  simply  neutralize  the  poison,  while  the 
germs  may  grow  in  their  throats  with  impunity;  and 


RELATIONSHIP   OF   PUBLIC    HEALTH    TO   BODY   POLITIC  27 

because  they  are  not  showing  by  symptoms  any  danger, 
such  persons  may  be  very  active  in  the  spread  of 
the  disease. 

The  nse  of  the  antitoxin  is  not  entirely  devoid  of 
danger.  There  is  a  peculiar  susceptibility  in  animals 
of  one  species  relative  to  the  blood  of  another.  This 
susceptibility  is  not  so  evident  with  one  injection  as 
it  may  be  with  another  made  a  long  time  afterward. 
Since  most  antitoxins  are  supplied  in  the  serum  derived 
from  a  horse,  it  is  quite  possible  that  when  it  has  been 
used  for  protection  from  disease,  at  a  subsequent  time 
antitoxin  may  be  needed  for  treatment  of  another 
disease,  and  if  that  also  chances  to  have  been  prepared 
with  the  horse  serum,  serious  harm  or  possibly  death 
may  result.  Though  this  outcome  is  now  rare  and 
likely  to  be  guarded  against  by  competent  physicians, 
it  is  a  danger  which  must  be  remembered.  On  the  con- 
trary, the  lactic  spray  is  very  active  in  its  antagonism 
to  the  diphtheria  germ,  and  is  absolutely  devoid  of 
danger.  It  is  therefore  a  proper  measure  for  the  health 
service. 

§26.  Entrance  of  bacteria  to  body.  Since  bacteria 
cannot  of  their  own  power  force  themselves  into 
healthy  tissue,  to  gain  entrance  they  must  attach  them-, 
selves  to  some  friendly  agent.  Many  enter  the  body 
with  food.  They  are  carried  from  one  patient  to 
another,  or  to  the  food,  on  the  hands  of  attendants. 
Sometimes  they  take  advantage  of  entering  the  body 
through  some  injury  to  the  skin  or  mucous  membrane. 
Not  infrequently  they  are  carried  from  one  patient  to 
a  healthy  individual,  who  is  thus  infected,  by  insects, 
and  perhaps  inserted  by  the  hypodermic  needle  of  a 
mosquito.     In  all  these  cases  the  insect  is  a  simple. 


28  PUBLIC   HEALTH   ADMINISTRATION 

carrier  of  the  infection,  and  the  danger  of  infection 
decreases  with  the  passage  of  time  since  the  insect  has 
come  in  contact  with  the  diseased  body  or  culture.  The 
species  of  carrier  is  not  important,  for  the  methods  of 
propagation  for  bacteria  are  practically  uniform. 
Some  protozoal  diseases  are  thus  transported,  as  was 
shown  on  the  Canal  Zone,  where  it  was  found  that  the 
common  house  fly  carried  the  trypanosome  of  dourine 
from  horse  to  horse,  thus  producing  the  infection. 

§27.  Insect  carriers  versus  hosts.  In  the  case  of 
many  protozoa,  on  the  other  hand,  the  insect  may  be 
more  than  a  simple  carrier.  (§417.)  Take  the  sleep- 
ing sickness  of  Africa,  for  example.  This  is  due  to  a 
trypanosome  which  propagates  itself  asexually  in  the 
body  of  a  patient  to  whom  it  has  been  communicated 
through  the  bite  of  a  tsetse-fly.  If  such  a  fly  bites  a 
patient  suffering  with  the  disease,  it  may  be  able  to 
communicate  the  disease  to  a  healthy  individual  by 
biting  him  within  from  twenty-four  to  forty-eight 
hours.  During  this  period  the  fly  is  a  simple  carrier, 
just  as  is  the  flea  a  carrier  of  the  bacillus  pestis.  After 
forty-eight  hours  the  fly  is  incapable  of  communicating 
the  disease  for  a  period  of  about  seventeen  days,  dur- 
ing which  the  protozoon  is  undergoing  sexual  repro- 
duction in  the  body  of  the  fly.  Thereafter,  for  a  period 
of  two  months  the  insect  is  again  an  infective  agent. 
It  has  not  been  shown  that  any  other  insect,  aside 
from  the  different  species  of  Glossina,  can  thus  serve 
for  the  sexual  development  of  that  particular  proto- 
zoon. In  like  manner  the  stegomyia  mosquito  is  the 
only  known  intermediary  host,  as  it  is  called,  for  the 
yellow  fever;  the  culex  mosquito  harbors  thus  the 
nlaria;  and  the  various  species  of  anopheline  mos- 


RELATIONSHIP  OF   PUBLIC   HEALTH   TO   BODY   POLITIC         29 

quitoes  alone  permit  the  sexual  cycle  of  development 
for  malarial  parasites.  Any  insect  possessing  an 
instrument  like  a  hypodermic  needle,  by  extracting 
blood  laden  with  these  protozoa,  and  carrying  it  to  a 
healthy  person  may  be  a  disease  carrier.  Only  special 
varieties  may  be  intermediary  hosts.  Only  thus  are 
these  diseases  spread. 

In  the  case  of  these  intermediary  hosts  the  danger 
of  infection  is  based  upon  the  mathematical  calculation 
of  probabilities.  The  factors  entering  into  the  compu- 
tation are  many,  but  they  are  readily  demonstrable. 
In  the  case  of  the  malarial  mosquito,  for  example,  the 
distance  from  the  breeding  ground  to  the  patient  is  a 
factor.  The  proportion  of  insects  to  persons  is  another. 
The  chance  that  a  person  will  be  bitten,  not  simply  by 
a  mosquito,  but  by  one  which  has  chanced  to  have 
bitten  a  patient  is  another  factor.  Then  the  chance 
that  a  mosquito  shall  live  long  enough  after  infection 
to  permit  the  Plasmodium  of  the  disease  to  pass 
through  its  sexual  cycle  is  another  factor.  The  doc- 
trine of  probabilities,  though  often  ignored,  must  be  at 
the  base  of  scientific  warfare  against  disease. 

§  28.  Animal  hosts.  It  must  be  remembered  that 
the  human  family  are  not  the  only  animals  which  may 
furnish  food  for  disease  germs.  The  flea  bites  a  person 
afflicted  with  the  bubonic  plague,  and  carries  the  bacilli 
to  the  rat,  where  they  develop  and  multiply.  From 
the  rat  other  fleas  carry  the  disease  to  ground  squirrels, 
and  other  animals,  whence  the  disease  may  again  be 
transferred  to  man.  The  study  of  these  means  for  the 
spread  of  disease  is  an  important  part  of  public  health 
science,  and  the  restriction  of  the  operation  of  this 
method  involves  the  destruction  of  the  vermin.     Not 


30  PUBLIC   HEALTH   ADMINISTRATION 

only  must  infected  rats  be  destroyed,  but  a  portion 
of  the  legitimate  work  of  the  service  must  be  the  pre- 
vention of  propagation  of  the  insect  carriers,  and  of 
the  vermin  which  aid  in  the  spread  of  diseases  dan- 
gerous to  mankind.  Herein  is  the  very  marked  dif- 
ference between  the  old  methods  and  those  now  used 
for  the  restriction  of  infectious  diseases,  and  it  is  quite 
possible,  and  some  of  us  believe  that  it  is  probable,  that 
almost  the  only  value  of  fumigation,  as  a  preventive  of 
the  spread  of  disease,  is  found  in  the  destruction  of 
insects  and  other  carriers.  Formerly  patients  with 
yellow  fever  were  strictly  isolated  from  their  friends, 
but  the  disease  spread  nevertheless.  Today  the  patient 
is  not  isolated,  but  he  is  kept  in  a  mosquito  proof  room, 
the  mosquitoes  are  all  killed  in  the  house,  and  the 
breeding  of  the  stegomyia  species  is  carefully  pre- 
vented. The  result  is  that  the  disease  is  quickly  eradi- 
cated. Th0  "yellow  jack"  has  completely  lost  its 
power  to  produce  fear,  though  in  times  past  it  was  able 
to  depopulate  towns,  and  many  ships,  in  Santos  or  Rio, 
which  reached  the  port  with  full  crews  of  healthy 
men,  were  left  to  rot  at  the  docks,  because  not  enough 
men  were  left  to  manage  the  ship.  The  old  method 
was  cruel,  and  inefficient.  The  new  is  humane  and 
effective. 

§  29.  Means  of  restricting  infectious  diseases.  The 
means  for  the  restriction  of  infectious  diseases  must 
include : 

1.  The  treatment  of  first  patients,  to  prevent  other 
infections.  Quinine  as  a  cure  for  malaria,  is  the  chief 
dependence  in  some  countries  for  the  restriction. 

2.  Treatment  of  exposed  persons.  Quinine  is  pro- 
tective   against   malaria.     Vaccination   is   protective 


RELATIONSHIP   OP   PUBLIC    HEALTH    TO    BODY   POLITIC  31 

against  small-pox.    Lactic  spray  is  protective  against 
diphtheria  and  meningitis. 

3.  Eestriction  of  patients  to  prevent  exposure. 
Sometimes  the  old  quarantine  is  still  required.  Some- 
times, as  in  yellow  fever  and  malaria,  patients  are  sur- 
rounded by  mosquito  proof  cages. 

4.  Destruction  of  insect  carriers,  and  vermin. 

5.  Discovery  and  treatment  of  human  carriers. 

6.  Education,  as  in  the  case  of  tuberculosis. 

§30.  Disease  carriers — human.  It  is  found  that 
many  healthy  individuals  are  a  constant  source  of 
danger  to  the  community,  by  reason  of  the  fact  that 
they  are  producing,  and  throwing  off  disease  germs. 
This  is  especially  true  of  typhoid  fever.  After  an 
attack  of  the  fever,  perhaps  so  mild  that  it  was  not  at 
the  time  recognized,  many  persons  continue  to  develop, 
and  discharge  the  bacilli  of  the  fever,  and  they  are 
thus  causing  frequent  infections,  especially  because 
owing  to  their  apparent  good  health  neither  the  carrier 
nor  his  friends  are  on  their  guard  against  the  ever 
present  danger.  The  legal  rights  of  such  individuals, 
and  of  the  community  as  against  them,  may  be  a  matter 
of  some  considerable  question  and  perplexity.  This 
must  be  recognized,  however,  that  a  typhoid  fever 
patient  is  not  properly  quarantined  so  long  as  his 
infectious  discharges  are  permitted  to  escape  complete 
sterilization,  and  a  typhoid  carrier  is  entitled  to  no 
consideration  if  he  so  conducts  himself  that  others 
receive  infection  from  him.  In  other  words,  it  is  as 
necessary  for  the  discharges  of  a  carrier  to  be  sterilized, 
as  it  is  for  those  of  a  patient. 

§31.  Reasonableness,  a  problem  of  probabilities. 
The  question  of  reasonableness  is  not  always  a  simple 


32  PUBLIC    HEALTH    ADMINISTRATION 

one  of  abstract  statement.  (§§14,  15,  170.)  A  district 
infected  with  anopheline  mosquitoes  is  potentially 
malarial,  but  in  the  absence  of  the  disease,  or  of  danger 
that  the  disease  may  be  imported,  it  is  not  necessarily 
reasonable  to  exterminate  the  breeding  places  by  com- 
pulsion. (§§  199,  200,  201.)  It  may  be  advisable,  but 
it  is  not  necessary.  Neither  is  it  reasonable  to  force 
the  antimalarial  measures  when  one^  patient  is 
imported.  It  is  far  more  reasonable  to  care  for,  and 
treat  the  patient,  and  prevent  the  contact  of  the  insects, 
than  to  spend  large  sums  in  draining,  and  training  the 
watery  breeding  places  of  the  mosquito.  It  might  be 
reasonable  to  attempt  these  engineering  problems  to 
raise  the  value  of  the  property,  and  to  recover  waste 
land,  but  from  the  standpoint  of  health  alone  it  would 
not  be  reasonable  in  the  face  of  a  single  case  or  two, 
which  might  be  otherwise  cared  for.  Especially  is  it 
true  when  we  consider  that  the  engineering  task  would 
take  perhaps  years  to  accomplish,  and  would  likely  be 
uncompleted  long  after  that  danger  had  passed.  From 
another  point  of  view,  even  the  draining  plan  would  be 
reasonable.  If  the  location  were  one  which  might  at 
any  time  be  invaded  by  carriers  of  the  Plasmodium, 
prudence  would  demand  that  the  community  be 
defended  by  removing  the  local  partnership  in  the 
threatened  danger.  It  was  the  malarial  mosquito 
which  conquered  Greece,  and  caused  the  downfall  of 
Rome.  Today  the  Italian  and  Grecian  laborers  who 
come  to  assist  in  our  railroad  and  other  constructions, 
frequently  have  the  Plasmodium  in  their  blood,  though 
to  a  degree  they  have  become  immune  to  its  active 
manifestations.  Before  beginning  such  constructive 
work  therefore,  it  is  wise  to  consider  the  advisibility 


RELATIONSHIP  OF   PUBLIC   HEALTH    TO   BODY   POLITIC         33 

of  destroying  the  breeding  places  of  the  insects.  It 
would  be  perfectly  reasonable  to  require  that  laborers 
coming  from  a  malarial  district  should  pass  such  a 
physical  examination  as  would  prove  whether  or  not 
they  be  affected  by  the  malarial  Plasmodium;  and  that 
all  individuals  showing  such  infection  might  reason- 
ably be  prohibited  from  remaining  in  the  district.  A 
case  originating  in  the  state  of  California  turned  upon 
the  reasonableness  of  certain  quarantine  regulations. 
The  Court  said  that  where  less  than  nine  persons  of 
the  population  of  the  city  had  died  from  the  bubonic 
plague  though  it  was  shown  that  living  human  beings 
had  been  infected,  the  prohibition  of  persons  either 
entering  or  leaving  a  territory  of  twelve  blocks  with 
a  population  of  more  than  10,000  was  an  unreasonable 
interference  with  their  lives  and  business.6 

§  32.  Reasonableness  of  requiring-  reports  of  infec- 
tious diseases.  It  is  reasonable,  and  necessary  for 
efficient  public  health  operations,  that  the  laws  requir- 
ing the  reporting  of  infectious  diseases  should  be  strict 
and  complete.  (§§392,  393,  410.)  Without  such 
reports  the  efforts  of  the  service  must  be  uncertain  and 
unsatisfactory.  Such  requirements  should  be  com- 
plete, in  that  every  possible  source  of  omission  should 
be  excluded.  This  means  that  every  infectious  disease 
should  be  mentioned,  and  that  there  should  be  a  per- 
sonal responsibility  therefor  upon  physicians  and 
householders.  It  is  reasonable  that  the  penalty  should 
be  severe  for  hiding,  or  attempting  to  hide  such  cases. 

•  Jew    Ho    v.    Williamson,    103       Fed.  10. 


CHAPTER  II 


UNDERLYING   PRINCIPLES    OF   GOVERNMENT — COMMON    LAW 
CONSTITUTIONS,  INSTITUTIONS  AND  STATUTES 


§  33.  Governmental  ideals. 

§  34.  Centralized  system. 

§  35.  Collective   authority. 

§  36.  Development  of  Anglican  lib- 
erty. 

§  37.  Individual  liberty  necessi- 
tates restraint. 

§  38.  True  liberty  is  communal. 

§  39.  Liberty  influenced  by  density 
of  population. 

§  40.  Mistaken  ideas  of  liberty  ob- 
stacles to  progress. 

§  41.  Liberty  influenced  by  divi- 
sion of  labor. 

§  42.  Constitutional  liberty. 

§  43.  Legal   interpretation. 

§  44.  Supremacy   of  law. 

§  45.  Common  law. 

§  46.  Common  law  basis  of  liberty. 

§  47.  Common  versus  statutory  law. 

§  48.  Institutions. 

§  49.  Antiquated  institutions. 

§  50.  English  Constitution. 


§  51.  American  constitutions. 

§  52.  Common  law,  constitutions, 
and  statutes. 

§  53.  Interpretation  of  law  by 
courts. 

§  54.  Illegal  acts  sometimes  sanc- 
tioned. 

§  55.  Doctrine  of  expediency. 

§  56.  Public  health  has  overridden 
legal  restriction. 

§  57.  Foresight  better  than  emer- 
gent energy. 

§  58.  Purity  of  intention  no  ex- 
cuse. 

§  59.  Compliance  with  law  to  be 
preferred. 

§  60.  Injurious  institutions. 

§  61.  Health  powers  too  great. 

§  62.  Law  should  be  observed. 

§  63.  Institutions  and  statutory 
law  preserve  personal  free- 
dom. 

§64.  "Force  of  Law." 


§  33.  Governmental  ideals.  In  order  to  appreciate 
the  full  import  of  legal  decisions,  it  is  necessary  to  have 
a  clear  idea  of  the  fundamental  principles  of  govern- 
ment. A  method  which  may  be  advisable  in  one 
country,  may  be  impossible  in  another.  Since  science 
is  universal,  its  disciples  are  prone  to  overlook  dis- 
tinctions in  systems  of  administration  which  are 
important;  but,  just  as  from  a  scientific  standpoint  the 

34 


UNDERLYING   PRINCIPLES   OF    GOVERNMENT  35 

prevention  of  malaria  in  one  place  must  be  very  dif- 
ferent from  that  which  will  prove  efficient  in  another, 
so  the  legal  steps  must  vary.  At  Cairo,  in  Egypt, 
drainage  is  practically  impossible  in  antimalarial  work 
and  recourse  must  be  had  to  the  free  petrolization  of 
cesspools.  Similarly,  administrative  orders  in  a  cen- 
tralized government  are  all  that  need  be  required  in 
many  instances ;  but  such  orders  would  be  illegal  in  the 
United  States  under  precisely  the  same  physical  con- 
ditions. 

§  34.  Centralized  system.  There  are  two  widely  dif- 
ferent theories  of  government.  The  centralized  system 
is  well  illustrated  in  the  Roman  Church.  The  Pope  is 
regarded  as  the  representative  of  God  upon  earth. 
Power  and  authority  is  delegated  down  from  him 
through  the  cardinals,  archbishops,  and  bishops  to  the 
priests,  over  the  individual  persons.  The  distinctively 
catholic  idea  of  a  government  must  therefore  be  an 
absolute  monarchy;  and  even  when  applied  to  such  a 
democratic  government  as  that  of  the  United  States, 
the  teaching  is  that  the  government  is  representative  of 
divine  authority.  This  slightly  differs  from  the  old 
Roman  theory,  carrying  the  practice  further  than  did 
the  Caesars.  Rome  was  the  head  of  the  Roman  Empire, 
though  the  importance  of  the  individual  citizen  of  the 
city  was  greater  than  under  the  rule  of  the  Pope. 

§  35.  Collective  authority.  The  theory  of  the 
framers  of  the  Government  of  the  United  States  is 
quite  the  reverse.  Sovereignty  resides  in  the  indi- 
vidual citizens,  who  unite  to  delegate  authority  to 
officers  of  different  grades  and  jurisdictions.  The 
officers  act  for,  and  in  the  name  of  the  people  collec- 
tively.   They  are  not  supposed  to  represent  any  class, 


36  PUBLIC   HEALTH   ADMINISTRATION 

nor  to  give  special  liberty,  or  license  to  any  individuals. 
They  have  authority  only  as  it  is  distinctly  granted. 
Neither  officer  nor  citizen  has  a  right  of  arbitrary 
action.  They  do  not  rule  the  people,  but  govern  for 
the  people. 

§36.  Development  of  Anglican  liberty.  A  distin- 
guishing feature  of  Anglican  liberty  is  found  in  the 
relative  importance  and  dignity  of  the  individual.  The 
Magna  Charta  was  forced  from  King  John  by  the 
Barons  in  England,  a  recognition  from  the  monarch  of 
the  fact  that  the  individual  subjects  have  rights  which 
even  kings  are  obliged  to  respect.  Gradually  the  power 
of  the  citizen  in  Great  Britain  has  increased,  and,  pari 
passu,  the  authority  of  the  sovereign  has  diminished. 
In  the  American  law  the  liberty  of  the  individual  has 
always  been  theoretically  recognized. 

§37.  Individual  liberty  necessitates  restraint.  An 
elastic  sphere  may  be  perfect  when  alone;  but  if  it  be 
among  a  number  of  such  spheres,  crowded  together  in 
a  box,  each  loses  a  portion  of  its  perfect  form.  The 
province  of  government  is  to  see  that  each  sphere  loses 
as  little  as  possible  of  its  perfection  of  form;  that  is, 
that  each  citizen  preserves  as  much  as  possible  of  his 
individual  freedom  of  action. 

§  38.  True  liberty  is  communal.  Eousseau's  idea  of 
liberty  centers  in  the  individual;  that  of  Montesquieu 
centers  in  the  community.  Restraint  is  needful  for 
the  most  perfect  liberty.  That  restraint  must  be  found 
in  the  law  to  protect  each  from  injury  by  others.  The 
democracy  of  Rousseau  is  impossible.  The  logical 
result  of  unrestrained  personal  freedom  is  the  suprem- 
acy of  the  strong.  The  most  perfect  form  of  this 
supremacy  of  the  strong  is  an  absolute  monarchy.  As 


UNDERLYING   PRINCIPLES   OF    GOVERNMENT  37 

Dr.  Lieber  aptly  says  :  *  ' '  Limitation  of  self-determi- 
nation is  one  of  the  necessary  characteristics  of  civil 
liberty. ' ' 

§39.  Liberty  influenced  by  density  of  population. 
Returning  to  the  illustration  of  the  elastic  spheres, 
one  readily  recognizes  that  the  greater  crowding  of  the 
spheres  renders  each  less  perfect.  The  more  humanity 
becomes  condensed  in  populous  communities,  the  less 
individual  freedom  can  each  possess.  If  any  one 
retains  an  undue  proportion,  it  must  be  at  the  expense 
of  the  weaker  neighbors,  just  as  a  more  firm  sphere 
may  preserve  its  form  at  the  expense  of  adjoining  balls 
with  thinner  walls. 

§  40.  Mistaken  ideas  of  liberty  obstacles  to  progress. 
Failure  to  realize  this  necessary  subordination  of  indi- 
vidual rights  to  those  of  the  community,  especially 
among  the  misguided  citizens  of  foreign  birth,  has  been 
an  obstacle  in  health  administration.  Nor  is  this  oppo- 
sition confined  to  uneducated  foreigners.  The  needful 
invasion  of  property  rights,  and  the  violation  of  indi- 
vidual liberty  are  the  causes  for  which  public  health 
measures  have  been  impeded.  It  cannot  here  be  too 
strongly  emphasized  that  liberty  does  not  imply  the 
unrestrained  right  to  do  as  one  pleases.  Neither  does 
it  imply  the  right  to  use  one 's  property  in  any  manner 
detrimental  to  the  community.  "But  it  may  be  here 
observed  that  every  citizen  holds  his  property  subject 
to  the  perplexities  of  this  (police)  power,  either  by  the 
state  legislature  directly  or  by  public  or  municipal  cor- 
porations, to  which  the  legislature  may  delegate  it."2 

i  Civil  Liberty,  Chap.  II,  p.  28.      Textor  v.  Baltimore  &  Ohio  B.  E., 
2  Dillon,    Sec.    141,    citing    Mc-      59  Md.  63. 
Kibben  v.  Ft.  Smith,  35  Ark.  325; 


38  PUBLIC    HEALTH   ADMINISTRATION 

"Still  he  owns  it  (property)  subject  to  this  restriction, 
namely,  that  it  must  be  so  used  as  not  unreasonably  to 
injure  others,  and  the  sovereign  authority  may  by 
police  regulations  so  direct  the  use  of  it  that  it  shall 
not  prove  pernicious  to  his  neighbors  or  the  citizens 
generally. ' ' 3 

§  41.  Liberty  influenced  by  division  of  labor.  It  is 
not  only  the  physical  condensation  of  the  population 
which  restrains  personal  liberty.  "With  advancing 
civilization  and  division  of  labor,  each  individual 
citizen  is  more  dependent  upon  the  many,  and  the 
injury  of  one  may  affect  all.  The  great  aggregations 
of  capital,  called  corporations,  are  natural  results  of 
commercial  and  industrial  development.  They  act  as 
more  powerful  oppressors  of  individual  freedom,  and 
the  observation  of  legal  safe-guards  is  therefore  even 
more  important  than  when  the  republic  was  formed, 
and  before  these  soulless  bodies  became  a  menace. 

§  42.  Constitutional  liberty.  It  is  well  to  consider 
the  remarks  which  Mr.  Webster  made  before  the 
United  States  Senate,  May  7,  1834.  The  spirit  of 
liberty4  "demands  checks;  it  seeks  for  guards;  it 
insists  on  securities;  it  entrenches  itself  behind  strong 
defenses,  and  fortifies  itself  with  all  possible  care 
against  the  assaults  of  ambition  and  passion.  It  does 
not  trust  the  amiable  weakness  of  human  nature,  and 
therefore  will  not  permit  power  to  overstep  its  pre- 
scribed limits,  though  benevolence,  good  intent,  and 
patriotic  purpose  come  along  with  it.  *  *  *  This 
is  the  nature  of  constitutional  liberty,  and  this  is  our 

3  Dillon,  See.   141.  IV,  p.  122. 

«  Works  of  Daniel  Webster,  Vol. 


UNDERLYING   PRINCIPLES   OF    GOVERNMENT  39 

liberty  if  we  will  rightly  understand  and  preserve  it." 
He  further  said:  ''The  simplest  government  and  the 
most  direct  is  pure  despotism. ' '  This  statement  is  true, 
whether  it  be  said  with  reference  to  the  city,  the  state, 
or  the  nation,  and  whether  we  consider  the  broader 
scope  of  governmental  activity,  or  a  limited  portion 
like  that  of  the  health  department. 

§  43.  Legal  interpretation.  Some  of  the  fundamental 
differences  between  the  Anglo  American  systems  of 
government,  and  those  of  other  peoples,  are  the  direct 
result  of  the  relative  protection  afforded  to  the  indi- 
vidual. The  Justinian  Code,  for  example,  was  the 
product  of  enactment.  Any  question  of  interpretation 
was  answered  by  a  new  enactment.  So  too  in  the 
temporal  government  of  many  other  peoples,  the  enact- 
ing power,  whether  of  king  or  senate,  has  been  the 
only  judge  of  interpretation,  and  as  Dr.  Lieber  says : 5 
"Authentic  (i.  e.,  official)  interpretation  is  not  inter- 
pretation, but  rather  additional  legislation. "  Ques- 
tions were  discouraged,  and  the  law  had  no  inherent 
life.  Thus  we  find  that  the  Papal  Bull  of  Pius  IV, 
January  20,  1564,  "sanctioning  and  proclaiming  the 
canons  and  decrees  of  the  Council  of  Trent,  contains 
also  the  prohibition  to  publish  interpretations  and  dis- 
sertations on  the  canons  and  decrees."6  With  such  a 
system  there  could  be  neither  philosophy  of  law,  nor 
growth. 

§44.  Supremacy  of  law.  The  predominance,  or 
supremacy  of  law,  as  opposed  to  personal  absolutism, 
is  the  distinguishing  characteristic  of  English  institu- 
tions.7    In  England  at  an  early  period  courts  began  to 

s  Chapter  18,  p.  208.  »  See  Dicey,  2nd  Ed.,  p.  173. 

•  Lieber,  Note,  p.  206. 


40  PUBLIC   HEALTH   ADMINISTRATION 

strive  for  some  philosophy  of  government,  and  every 
decree  of  the  king,  or  enactment  of  parliament  was 
interpreted  by  judges.  Gradually  these  judges 
became  more  and  more  independent  of  both  the  legis- 
lative and  the  executive  powers,  and  the  usages  of 
procedure  were  determined  by  the  courts  themselves. 
Changes  in  methods  were  slowly  made,  as  necessity 
became  apparent,  and  they  were  intended  to  preserve 
justice,  as  between  man  and  man,  and  to  defend  the 
rights  of  the  individual  from  encroachments.  Each  case 
decided  became  a  precedent — a  custom.  This  custom 
was  not  binding  absolutely,  like  the  Justinian  Code, 
but  it  might  be  modified,  limited,  or  overruled  for  due 
cause,  according  to  the  opinion  of  the  court.  "A  prec- 
edent in  law  is  an  ascertained  principle  applied  to  a 
new  class  of  cases,  which  in  the  variety  of  practical 
life  has  offered  itself.  It  rests  on  law  and  reason, 
which  is  law  itself.  It  is  not  absolute.  It  does  not 
possess  binding  power  merely  as  a  fact  or  as  an  occur- 
rence. ' ' 8  This  system  is  the  natural  development  of  a 
reasoning  people,  for  it  is  the  nature  of  a  thinking 
man  to  analyze  and  systematize  facts  and  ideas. 

§  45.  Common  law.  Precedents  having  accumulated, 
an  idea  became  customary,  or  common,  and  the  funda- 
mental principles  of  law  thus  became  recognized, 
though  unwritten.  This  lex  non  scripta  is  called 
therefore  the  common  law.  "A  living  common  law  is, 
as  has  been  indicated,  like  a  living  common  language, 
like  a  living  common  architecture,  like  a  living  com- 
mon literature.  It  has  the  principle  of  its  own  organic 
vitality,  and  of  primitive,  as  well  as  assimilative 
expansion,  within  itself.     It  consists  in  the  customs 

sLieber,  Chapter  18,  p.  208. 


UNDERLYING   PRINCIPLES   OP    GOVERNMENT  41 

and  usages  of  the  people,  the  decisions  which  have 
been  made  accordingly  in  the  course  of  administering 
justice  itself,  the  principles  which  reason  demands  and 
practice  applies  to  ever  varying  circumstances,  and 
the  administration  of  justice  which  has  developed  itself 
gradually  and  steadily. ' ' 9  From  time  to  time  por- 
tions of  this  lex  non  scripta  became  written  in  the 
enactments  of  parliament,  and  so  more  fixed  and 
inflexible. 

Although  the  expression  "common  law"  is  with  us 
ordinarily  applied  to  the  English  common  law,  it  must 
not  be  forgotten  that  every  country  has  its  own  com- 
mon law,  and  that  the  courts  do  not  make  common  law 
— they  but  recognize  officially  what  is  common  law. 
Common  law  of  a  given  section  may  cause  an  excep- 
tion to  be  made  in  the  working  of  statutory  law.  Such 
exceptions  we  find,  for  example,  relative  to  Moham- 
medans in  East  India  sometimes.  Again,  starting  with 
the  same  common  law  two  peoples  may  develop  a  very 
different  common  law  according  to  circumstances. 
Common  law  in  England  today  is  not  binding  upon  the 
peoples  of  the  United  States.  "As  long  as  a  nation 
continues  to  live  and  grow,  nothing  can  stop  the  growth 
of  its  law.  The  rules  of  law  are  simply  those  rules 
of  conduct  which  are  enforced  by  the  state,  and  they 
have  to  be  applied  with  reference  to  the  political, 
social,  and  economic  conditions  of  the  time.  Absence 
of  power  to  legislate,  or  failure  to  exercise  it,  may 
impede,  cramp,  or  distort  the  growth,  but  cannot 
destroy  it.  The  stream  will  either  burst  through,  or, 
more  often,  find  its  way  by  tortuous  and  unexpected 
channels.      The    human    mind    displays    marvellous 

»  Lieber,  Chapter  18,  p.  205. 


42  PUBLIC    HEALTH   ADMINISTRATION 

ingenuity  in  adapting  old  forms  to  new  conditions, 
whether  those  forms  are  embodied  in  codes  or  in 
creeds.  The  principle  of  development  has  been 
applied,  not  only  to  theological  formularies,  but  to 
documents  like  the  Constitution  of  the  United  States, 
and,  under  the  pressure  of  inexorable  necessity,  is 
somehow  applied  in  apparent  defiance  of  the  rules  of 
logic  and  of  language. ' ' 10 

§  46.  Common  law  basis  of  liberty.  The  common 
law  is  essentially  the  same  among  all  English  speaking 
peoples.  It  was  brought  to  America  by  the  colonists, 
and  it  forms  the  bulwarks  of  our  institutions.  It  may 
be  changed,  but  it  cannot  be  ignored,  or  trampled 
under  foot,  without  injury  to  the  people.  Herein  lies 
the  great  difference  between  American  Democracy  and 
the  old  Roman  type.  This  old  Roman  idea  is  seen  in 
the  earlier  French  republic;  an  absolute  equality  con- 
centrated in  the  absolute  dominion  of  the  majority; 
or,  in  the  French  empire,  where  the  power  of  the 
majority  is  transferred  to,  and  centered  in  the  Emperor. 
The  same  theory  is  found  in  a  weakened  form  in  the 
present  French  republic.  Such  seems,  too,  to  be  the 
theory  of  some  at  least  of  the  later  day  socialists  in 
America,  who  show  a  tendency  to  overthrow  or  anni- 
hilate the  bulwarks  of  personal  liberty  found  in  the 
common  law. 

§  47.  Common  versus  statutory  law.  From  time  to 
time,  according  to  the  exigencies  of  the  case,  the  legis- 
lative authorities  enact  statutes;  but  here  again,  as 
Dillon  remarks,11  the  common  law  is  the  basis  of  the 


io  Ilbert,  p.  173.  n  Municipal    Corporations,    Sec. 

8. 


UNDERLYING   PRINCIPLES   OP    GOVERNMENT  43 

laws  of  every  state.  The  distinction  between  common 
and  statutory  law  dates  back  to  1216.  ' '  National  coun- 
cils had  met  from  the  most  remote  times;  but  to  the 
end  of  this  reign,  their  acts  not  being  preserved  on 
record  are  supposed  to  form  a  part  of  the  lex  non 
scripta,  or  common  law.  Now  begins  the  distinction 
between  common  and  statute  law."12 

§  48.  Institutions.  Growth  in  any  community  leads 
to  the  establishment  of  institutions.  One  of  our  most 
ancient  institutions  is  trial  by  jury.  Another  example 
is  the  institution  of  quarantine.  Though  institutions 
have  grown  with  the  common  law,  and  though  our 
constitutions  are  based  upon  the  common  law,  constitu- 
tions may  sometimes  conflict  with  institutions.  This 
conflict  may  result  in  modifying,  or  restricting  the 
institution;  or,  depending  upon  the  sanction  of  usage, 
the  institution  may  persist  in  spite  of  constitutional 
restrictions  for  a  time. 

§  49.  Antiquated  institutions.  An  institution  may 
become  antiquated  by  reason  of  social,  or  scientific, 
progress.  The  provision  that  members  of  a  jury  shall 
be  disqualified  for  service  if  they  have  heard  or  read 
of  the  case  on  trial,  is  a  relic  of  the  days  before  the 
art  of  printing,  the  modern  newspaper,  the  telegraph, 
and  the  telephone.  Ignorance  of  a  case  often  indicates 
an  untrained  mind,  slow  of  comprehension,  and  unable 
to  reason  clearly.  Such  a  man  is  a  creature  of  impulse 
and  of  feeling.  He  may  be  easily  swayed  by  the  ora- 
torical efforts  of  the  barrister,  and  is  not  an  ideal  agent 
for  the  preservation  of  right  and  justice.  Again,  such 
quarantine  as  was  the  result  of  former  theories,  we 
know  today  is  utterly  useless  against  yellow  fever. 

12  Lord  Campbell,  Vol.  I,  p.  113. 


44  PUBLIC    HEALTH    ADMINISTRATION 

The  mere  fact  that  common  practice  has  used  such 
quarantine  for  hundreds  of  years  is  no  satisfactory 
evidence  of  its  value.     (See  Chapter  XIV). 

Old  institutions  should  be  preserved  only  so  long  as, 
or  to  the  degree  that,  they  tend  to  preserve  and  pro- 
tect individual  liberty.  On  the  other  hand,  these  old 
institutions  have  a  most  powerful  influence  even  among 
the  educated  in  preventing  the  substitution  of  new 
methods.  "No  es  costumbre"  is  a  chain  which  retards 
progress  even  outside  of  the  Spanish  peninsula.  Unfor- 
tunately it  often  happens  that  well  meaning  practi- 
tioners of  medicine,  who  have  not  kept  abreast  of 
scientific  advancement,  make  the  same  objection  to 
changes  in  methods  of  quarantine.  "It  is  no  part  of 
modern  quarantine  to  make  commercial  intercourse 
difficult;  it  is  designed  to  protect  commerce  by  lessen- 
ing the  risk  of  disease,"  wrote  Sir  Rubert  Boyce.13 
Institutions  must  be  used  and  preserved  only  so  far  as 
they  make  for  the  preservation  of  liberty  in  its  best 
sense. 

§  50.  English  Constitution.  ' '  What  is  called  the 
English  Constitution  consists  of  the  fundamentals  of 
the  British  polity,  laid  down  in  custom,  precedent,  de- 
cisions, and  statutes;  and  the  common  law  is  a  far 
greater  portion  than  the  statute  law.14  In  England, 
therefore,  the  distinction  between  constitution  and 
statute  is  not  as  clearly  defined  as  in  the  United 
States. 

§51.  American  Constitutions.  When  the  United 
States  was  formed  into  a  nation,  its  founders  agreed 
upon  certain  clear  portions  of  the  common  law,  and 
recorded  them  in  a  Constitution,  together  with  matters 

is  Boyce,    p.    114.  n  Lieber,  Chap.   18,  p.  210. 


UNDERLYING   PRINCIPLES   OF    GOVERNMENT  45 

of  executive  detail.  Each  state  in  the  Union,  like- 
wise, has  a  written  constitution,  and  no  act  either  of  a 
court,  legislative  body,  or  executive,  can  be  lawful,  or 
legal,  if  it  violates  the  principles  thus  recorded.  Every 
statute  must  be  measured  according  to  the  constitutions 
under  which  it  is  enacted.  A  state  statute  must  not 
conflict  with  either  the  constitution  of  that  state,  nor 
with  that  of  the  Nation.  These  constitutions  are  in- 
terpreted by  the  courts  according  to  the  principles  of 
the  common  law,  and  we  have  therefore  a  collection  of 
precedents  known  collectively  as  Constitutional  Law. 
It  must  also  be  remembered  that  no  state  constitution 
may  violate  that  of  the  United  States;  and  where  an 
apparent  conflict  might  exist,  it  is  the  duty  of  the  court 
if  possible  to  interpret  the  state  document  under  the 
limitations  of  the  Constitution  of  the  Nation. 

§  52.  Common  law,  constitutions,  and  statutes.  We 
find,  therefore,  that  the  more  fixed  facts  of  law  are  em- 
bodied in  the  written  constitutions.  Those  less  sure, 
and  more  variable  are  enacted  into  statutes,  which  may 
be  readily  altered.  Yet  even  common  law  is  not  easily 
changed.  It  takes  much  time  to  alter  legal  custom.  But 
if,  with  the  changes  due  to  civilization,  or  science,  some 
custom  of  the  common  law  has  become  antiquated,  it 
may  be  modified  or  abolished  by  statutory  enactment. 
Constitutional  provisions  are  therefore  more  perma- 
nent than  those  of  statutes,  and  statutory  enactments 
conflicting  with  the  constitutions  governing  the  same 
territory  are  not  law.  Institutions,  or  the  acts  of  either 
officials  or  private  individuals,  conflicting  with  either 
statutory  or  constitutional  law  are  not  lawful,  even 
though  with  the  sanction  of  custom  they  may  be  per- 
mitted, or  ignored.  Such  today  are  certain  public 
health  operations. 


46  PUBLIC   HEALTH   ADMINISTRATION 

§  53.  Interpretation  of  law  by  courts.  In  the  in- 
terpretation of  statutes  the  courts  are  guided  by  the 
common,  as  well  as  by  the  written  law.  A  decision  by 
a  lower  court  has  little  value  as  a  precedent,  though  the 
same  argument  may  be  applicable  in  the  case  at  bar. 
The  same  is  true  as  to  the  opinions  rendered  by  the 
Attorneys  General,  either  of  the  state  or  nation.  In 
certain  states  there  is  a  provision  for  the  rendering  of 
an  opinion  by  the  members  of  the  supreme  court, 
upon  the  request  of  the  Governor,  or  other  proper  offi- 
cer, but  even  such  an  opinion  is  not  authoritative,  and 
may  be  overruled  by  the  same  court,  when  a  case  is 
presented.  The  decision  of  a  case  by  a  supreme  court 
is  practically  binding  upon  subordinate  courts,  until  it 
shall  have  been  overruled  by  the  same,  or  a  higher 
court.  It  therefore  has  the  force  of  law,  though  it 
does  not  thereby  repeal  a  statute  which  it  pronounces 
unconstitutional. 

Since  state  constitutions  vary,  identically  the  same 
statute  may  be  law  in  one  state  but  not  in  another. 
Decisions  in  other  states,  or  in  the  British  empire,  are 
valuable  aids  in  the  critical  examination  of  a  question, 
but  they  have  no  binding  force.  Decisions  of  the  Su- 
preme Court  of  the  United  States  are  authoritative  as 
to  questions  pertaining  to  the  Federal  Constitution, 
and  the  statutes  of  the  United  States.  It  is  the  usage 
of  that  court  to  uphold  the  decisions  of  the  state  su- 
preme courts  as  to  the  constitutions  of  their  respective 
states,  and  therefore  the  same  question,  reaching  the 
United  States  Supreme  Court  from  different  states  may 
be  decided  differently. 

§  54.  Illegal  acts  sometimes  sanctioned.  ' '  Self  pres- 
ervation is  the  first  law  of  nature,"  and  "Salus  populi 


UNDERLYING   PRINCIPLES   OF    GOVERNMENT  47 

est  suprema  lex,"  are  dicta  which  are  well  recognized 
by  the  common  law.  Though  contrary  to  both  the 
moral  and  the  statutory  law  to  kill  a  man,  such  an  act 
may  be  legally  excused  if  it  is  necessary  for  the  preser- 
vation of  other  lives.  It  is  excused  if,  for  example,  it 
is  done  in  the  line  of  duty;  as  when  a  policeman  shoots 
a  dangerous  criminal  who  is  trying  to  escape.  In 
such  cases,  however,  it  is  required  that  the  killer  must 
have  used  every  reasonable  means  to  avoid  taking  hu- 
man life.  In  other  words,  neither  self-preservation 
nor  the  safety  of  the  people  may  be  used  as  an  excuse 
except  in  extreme  emergency.  In  the  presence  of  great 
epidemics  the  safety  of  the  people  has  been  the  warrant 
which  was  taken  to  authorize  frequent  violation  of 
property  rights,  and  the  deprivation  of  innocent  citi- 
zens of  personal  liberty. 

§  55.  Doctrine  of  expediency.  Herrera  y  Tordesil- 
las,  the  Spanish  historian  who  wrote  three  centuries 
ago,  said:  "Those  who  are  governed  by  reasons  of 
state  are  apt  to  shut  their  eyes  against  everything 
else. ' ' 15  and  what  was  true  at  that  time  is  equally  true 
at  present.  There  is  always  a  constant  tendency  on  the 
part  of  governmental  officers  to  overstep  the  limits  of 
their  power;  not  because  of  wilfulness,  nor  of  desire  to 
oppress;  but  rather  through  such  an  excess  of  enthu- 
siasm, perhaps,  for  their  own  special  work,  that  they 
are  blinded  to  the  rights  and  duties  of  others.  They 
do  not  recognize  the  bounds  which  are  set  to  their  law- 
ful operations. 

§  56.    Public  health  has  overridden  legal  restriction. 
There  are  several  closely  associated  reasons  why  pub- 
is Hist.  General,  Dee.  5,  Lib.  6, 
Cap.  3. 


48  PUBLIC    HEALTH    ADMINISTRATION 

lie  health  operations  have  sometimes  overridden  con- 
stitutional, and  statutory  limitations. 

First,  Makeshifts.  Owing  to  the  former  ignorance 
as  to  the  science  of  preventive  medicine,  many  expe- 
dients have  been  used  as  makeshifts,  and  by  long  usage 
they  have  become  unquestioned  habits. 

Secondly,  Ignorance.  Public  health  administration 
has  been  largely  in  the  care  of  physicians.  Physicians 
as  a  rule  are  ignorant  of  the  theory  of  law,  and  as 
health  officers  they  have  unconsciously  ignored  its  re- 
strictions. 

Thirdly,  Public  Health  an  Avocation.  Heretofore 
public  health  service  has  been  an  avocation,  rather 
than  a  vocation.  Few  members  of  the  profession  have 
devoted  their  whole  time  to  it,  and  the  remuneration 
for  such  public  service  as  has  been  rendered  has  been 
very  small.  There  has  been  no  other  inducement  than 
pure  altruism  for  studying  the  problems  of  health  ad- 
ministration. The  methods  and  interests  involved  in 
the  practice  of  medicine,  are  antagonistic  to  preven- 
tive medicine.  The  life  of  the  practitioner  depends 
upon  his  practice,  and  public  health  has  been  neglected. 

Fourthly,  Emergency  Produces  Precedents.  Prece- 
dents in  public  health  work  have  been  chiefly  estab- 
lished in  times  of  special  danger.  The  people  have  been 
willing  to  pay  a  great  price  to  be  rid  of  the  pestilence. 
Action  has  been  forced  by  necessity,  and  the  methods 
chosen  have  not  been  closely  scrutinized. 

Lastly,  Slight  Deviations  Result  in  Perversion. 
Variations  from  legal  methods  have  developed  so  slow- 
ly, and  each  step  has  been  so  insignificant,  that  they 
have  not  even  been  noticed.  Just  as  a  wayfarer  going 
through  a  wood  may  step  aside  from  the  path  to  gather 


UNDERLYING    PRINCIPLES   OF    GOVERNMENT  49 

berries,  and  supposing  that  he  is  still  paralleling  the 
road  he  may  proceed  until  he  suddenly  discovers  him- 
self far  out  of  his  way;  so  a  health  officer  may  advance 
with  assurance  in  his  work,  emboldened  by  custom, 
until  at  a  critical  point  he  may  be  checked  by  quo  war- 
ranto  or  other  legal  action.  Too  often,  under  such 
conditions,  he  resents  the  interference  of  the  courts,  and 
chafes  under  the  technicalities  of  the  law.  The  fault 
is  not  with  the  law,  nor  is  it  in  the  courts.  The  check 
is  the  penalty  of  the  administrator  for  failing  to  use 
the  methods  ordained,  and  for  overlooking  or  disre- 
garding the  provisions  for  the  protection  of  the  peo- 
ple. It  is  well  to  consider  the  words  of  Mr.  Justice 
Miller:  "I  but  repeat  the  language  of  the  Supreme 
Court  of  the  United  States  when  I  say  that  in  this 
country  the  law  is  supreme.  No  man  is  so  high  as  to 
be  above  the  law.  No  officer  of  the  Government  may 
disregard  it  with  impunity. "  16 

§  57.  Foresight  better  than  emergent  energy.  The 
ideal  public  health  executive  does  not  show  his  strength 
in  spectacular  performances,  nor  in  the  handling  of  a 
great  epidemic,  but  in  the  making  of  such  preparations 
that  the  pestilence  can  gain  no  foothold.  "In  time  of 
peace  prepare  for  war,"  should  be  his  motto.  The  na- 
tion which  is  prepared  is  less  likely  to  have  a  war,  and 
the  state  or  city  which  is  prepared  in  advance  is  not 
likely  to  have  an  epidemic.  The  very  appearance  of 
an  epidemic  is  evidence  of  primary  weakness  and  in- 
efficiency. It  is  vain  for  the  health  official  to  plead 
necessity  as  an  excuse  for  autocratic  methods  in  the 
face  of  an  epidemic.    Legal  measures  should  have  been 

is  Miller,    on    the    Constitution, 
p.  33. 


50  PUBLIC    HEALTH    ADMINISTRATION 

taken  before  the  danger  showed  its  head.  Mr.  Justice 
Story  says: 17  "It  has  been  often  said  that  necessity 
is  the  plea  of  tyrants;  but  it  is  equally  true  that  it  is 
the  plea  of  all  public  bodies  invested  with  power,  where 
no  check  exists  upon  its  exercise.  The  guarantees  of 
individual  liberty  in  the  Constitution  were  intended 
for  a  state  of  war  as  well  as  a  state  of  peace,  and  were 
equally  binding  upon  rulers  and  people  at  all  times,  and 
under  all  circumstances."  Public  health  work  has 
been  aptly  compared  with  warfare,  and  therefore  the 
above  quotation  from  the  distinguished  jurist  is  the 
more  appropriate  in  the  present  connection.  In  Ex 
parte  Milligan,  we  read : 18  ' '  Neither  the  President, 
nor  Congress,  nor  the  Judiciary  can  disturb  any  one 
of  the  safeguards  of  civil  liberty,  incorporated  into  the 
Constitution,  except  so  far  as  the  right  is  given  in  cer- 
tain cases  to  suspend  the  privilege  of  habeas  corpus/9 
and  "No  doctrine  involving  more  pernicious  conse- 
quences was  ever  invented  by  the  wits  of  man,  than 
that  any  of  its  provisions  can  be  suspended  during  any 
of  the  great  exigencies  of  government.  Such  a  doc- 
trine leads  to  anarchy  or  despotism;  but  the  theory  of 
necessity  on  which  it  is  based  is  false ;  for  the  Govern- 
ment within  the  Constitution  has  all  the  powers 
granted  to  it  which  are  necessary  to  preserve  its  ex- 
istence." 

§  58.  Purity  of  intention  no  excuse.  Unfortunately 
it  too  frequently  happens  that  honest  and  competent 
men,  realizing  only  the  purity  of  their  own  intentions, 
fail  to  recognize  that  in  their  zeal  they  are  seeking  to 
establish  precedents  which  may  be  potent  for  evil  in 

it  Commentary  on  the  Constitu-  i8  4  Wall.,   120. 

tion,  Sec.  551. 


UNDERLYING   PRINCIPLES   OF    GOVERNMENT  51 

the  hands  of  unscrupulous  officials.  Judge  Davis  was 
speaking  of  the  exigencies  of  war  when  he  said  19  that 
the  theory  of  necessity  was  false,  but  the  statement  is 
equally  true  in  public  health  service.  The  plea  is  only 
evidence  of  previous  inefficiency.  In  Jenkins  v.  Board 
of  Education,20  the  supreme  court  of  Illinois  said: 
"There  is  nothing  in  the  nature  of  an  emergency  in 
the  occasional  recurrence  of  the  well  known  disease  of 
smallpox  in  a  city  like  Chicago,  which  may  not  be 
provided  for  by  general  rules  and  regulations  pre- 
scribed by  the  legislative  authority  of  the  city."  "The 
securities  of  individual  rights,  it  has  often  been  ob- 
served, cannot  be  too  frequently  declared,  nor  in  too 
many  forms  of  words;  nor  is  it  possible  to  guard  too 
vigilantly  against  the  encroachments  of  power,  nor  to 
watch  with  too  lively  a  suspicion  the  propensity  of 
persons  in  authority  to  break  through  the  'cobweb 
chains  of  paper  constitutions.'  "2l 

§  59.  Compliance  with  law  to  be  preferred.  When- 
ever two  courses  are  open  for  action,  the  one  constitu- 
tional, and  the  other  unconstitutional,  it  is  our  duty 
to  choose  the  former.  It  matters  not  how  desirable  an 
object  may  be  of  attainment,  if  the  method  used  is  even 
slightly  illegal  it  should  be  abandoned,  and  a  more 
just  way  should  be  found.  In  Boyd  v.  United  States 22 
Mr.  Justice  Bradley  says  that ' '  Illigitimate  and  uncon- 
stitutional practices  get  their  first  footing  in  that  way, 
namely,  by  silent  approaches,  and  slight  deviations 
from  legal  modes  of  procedure.' '  So  in  Potts  v.  Breen,23 
the  court,  while  admiting  the  advisability  of  vaceina- 

19  Ex  parte   Milligan,  loc.  cit.  22  H6  U.  S.  616,  635. 

20  234  111.,  427.  23  167  111.,  67. 

21  Story,    On    the    Constitution, 
Book  III,  Sec.  1938. 


52  PUBLIC    HEALTH   ADMINISTRATION 

tion,  decided  that  the  path  chosen  was  not  constitution- 
al, and  pointed  out  the  legal  method  of  its  attainment. 

§  60.  Injurious  institutions.  Lieber  calls  attention 24 
to  the  fact  that  institutions,  though  not  viciously  con- 
ceived, may  become  injurious.  They  may  become  hol- 
low, and  like  the  empty  boxes  in  an  ill  managed  house, 
become  catchalls  for  rubbish,  and  thus  nuisances.  Thus 
the  institution  of  quarantine,  though  designed  for  the 
common  good,  has  been  used  for  the  purposes  of  op- 
pression, and  to  gain  advantage  over  opponents.  Health 
office  inspectors,  under  the  old  Tweed  regime  in  New 
York  City,  were  used  systematically  for  the  collection 
of  blackmail.25  Other  illustrations  might  be  found  of 
a  like  perversion  of  health  administration,  for  private 
gain. 

§  61.  Health  powers  too  great.  Under  these  condi- 
tions it  is  not  to  be  wondered  that  Professor  Goodnow 
says : 26  "It  may  well  be  doubted  whether  the  powers 
possessed  by  these  (health)  authorities  in  the  United 
States,  in  those  cases  in  which  their  powers  are  the 
greatest,  are  not  too  great.  Their  discretion  is  so  wide 
and  so  uncontrolled  that  it  offers  large  opportunities 
for  official  oppression,  and  if  current  rumor  may  be 
credited,  this  discretion  has  in  the  past  been  made  use 
of  in  many  cases,  not  so  much  to  protect  the  public 
safety  and  health,  as  to  enrich  the  officers  of  the  health 
and  building  departments  through  the  levy  of  black- 
mail, or  to  obtain  political  support  for  the  party  in 
control  of  the  city  government." 

§  62.  Law  should  be  observed.     Even  a  pernicious 

a*  Civil  Liberty,  Chapter   26,  p.  26  Municipal      Government,      p. 

317.  286. 

25  Autobiography  of  Andrew  D. 
White,  Vol.  I,  p.  107. 


UNDERLYING   PRINCIPLES   OF    GOVERNMENT  53 

statute  should  be  observed.  If  it  is  vicious  it  should  be 
repealed,  or  the  sting  should  be  removed  to  make  it 
harmless.  The  responsibility  for  the  law  is  with  the 
legislative  body,  not  with  the  executive.  The  repeal 
cannot  be  attained  by  violating  its  provisions.  Then 
the  people  will  not  see  its  harmfulness.  Ignore  it, 
and  a  bad  example  is  set,  and  respect  for  law  has  been 
decreased.  Observe  it,  and  the  evils  perceived  will 
cause  its  repeal,  and  respect  for  law  will  be  deepened. 
On  the  other  hand,  as  Mr.  Justice  Miller  says:27 
"  History  teaches  us  in  no  mistaken  language,  how 
often  customs  and  practices  which  were  originated 
without  lawful  warrant,  and  opposed  to  sound  con- 
struction of  the  law,  have  come  to  overload  and  per- 
vert it. ' ' 

§  63.  Institutions  and  statutory  law  preserve  per- 
sonal freedom.  Institutions  and  constitutions,  common 
law  and  statutory  enactment  are  all  for  the  preserva- 
tion of  personal  freedom,  and  not  for  oppression,  nor 
for  injury.  Their  object  is  to  aid,  not  to  hinder  prog- 
ress in  civilization.  No  apparent  harm  may  result 
when  an  individual  in  a  hurry  "cuts  across"  a  private 
lawn,  rather  than  go  around  the  corner  on  the  side- 
walk. If  he  repeat  the  act  frequently  he  wears  a  path 
which  injures  the  lawn,  and  sets  a  bad  example.  The 
act  is  lawless,  and  opens  the  way  for  more  lawless 
deeds  by  others.  Just  so,  to  make  up  for  previous 
negligence  public  officers  may  do  some  minor  act  of 
illegality,  but  that  makes  it  more  possible  to  wander 
further  from  the  lawful  path.  The  object  sought  is 
no  excuse ;  it  is  simply  an  explanation. 

§64.  "Force   of   Law."     It  is  necessary  that  we 

2T  On  the  Constitution,  p.  21. 


54  PUBLIC    HEALTH   ADMINISTRATION 

should  make  a  clear  distinction  between  that  which  is 
genuine  law,  that  is,  which  has  the  full  force  and  au- 
thority of  law,  and  that  which  simply  has  the  appear- 
ance and  external  form  of  law.  A  statute,  though 
passed  in  due  form,  is  not  really  law  if  it  conflicts  with 
constitutional  provision;  though  until  passed  upon  by 
the  court  it  may  have  the  effect  of  law.  So  the  order 
of  an  executive,  the  ordinances  of  a  municipality,  or 
the  regulations  of  a  board  of  health,  are  law  only  when 
within  the  powers  granted  by  the  constitution  and  the 
statutes.  The  standing  of  any  enactment,  order,  rule, 
regulation,  or  ordinance,  as  law,  is  not  sure  until  it  has 
been  passed  upon  by  the  highest  court  having  juris- 
diction. (§  112.)  Either  may  be  law  if  properly  is- 
sued; neither  is  law  if  it  violate  constitutional  provi- 
sions or  superior  statutes.  Unfortunately,  health  ex- 
ecutives not  seldom  lose  sight  of  this  distinction,  and 
in  consequence,  unduly  emphasize  the  value  of  special 
ordinances.  The  English  writer  upon  Sanitary  Law, 
Dr.  Charles  Porter,  devotes  his  entire  discussion  to 
the  form  of  statutes  as  passed ;  and  in  his  excellent  work 
on  Municipal  Hygiene  Dr.  Charles  V.  Chapin  devotes 
most  of  his  space  to  the  forms  of  municipal  ordinances, 
rather  than  to  the  underlying  principles.  A  desirable 
law,  from  a  scientific  point  of  view,  may  not  be  good 
law  in  the  legal  sense ;  and  vice  versa.  Municipal  ordi- 
nances or  executive  orders  have  the  full  force  of  law, 
when  issued  with  statutory  authority;28  and  a  statute 
is  law  only  when  within  the  permission  of  the  constitu- 
tion. The  decision  as  to  the  validity  of  statute  or  or- 
dinance is  the  prerogative  of  the  court. 

28  Buffalo    v.    H.    L.    &    E.    W.      496;   People  v.  N.  Y.  Edison  Co., 
R.  K.  Co.,  152  N.  Y.  276;  46  N.  E.      144  N.  Y.   Supp.   707. 


CHAPTER  III 

THE    TRIPLE    SYSTEM    OF    GOVERNMENT,    AND    RELATION    OF 
EACH   BRANCH   TO   PUBLIC   HEALTH   ADMINISTRATION 


65. 

The   Anatomy   and  physiol- 

§ 

83. 

ogy  of  government. 

§ 

84, 

66. 

Three    branches    of    govern- 

ment. 

§ 

85. 

67. 

Separation  of  powers  often 

ignored    in   public    health 

§ 

86, 

administration. 

68. 

Importance    of   Triple    Sys- 

tem. 

§ 

87. 

69. 

Union    of    powers,    tool    of 

tyranny. 

§ 

88. 

70. 

No      liberty     with      powers 

§ 

89. 

united. 

§ 

90. 

71. 

Separation  of  powers  purely 

Anglican. 

§ 

91. 

72. 

Separation  most  perfect  in 
United  States. 

73. 

Union    of   powers   in    Euro- 

pean  governments. 

§ 

92. 

74. 

Abuse  of  power  may  not  be 
frequent. 

75. 

Paper   constitutions. 

§ 

93. 

76. 

Basis     for     comparison     of 

governments. 

§ 

94. 

77. 

Confederation  not  a  nation. 

78. 

Permanence'  of    nation    de- 
pends     upon      individual 

§ 

95. 

restriction. 

§ 

96. 

79. 

Latin      American      govern- 

ment. 

§ 

97. 

80. 

Misjudgment. 

§ 

98. 

81. 

United    States,    division    of 

powers. 

§ 

99. 

82. 

State     constitutional     provi- 

sions. 

§ 

100. 

Lack  of  distributive  clause. 

Danger  of  congressional 
usurpation  of  power. 

Illegal  custom  lacks  sanc- 
tion. 

Executive  quasi-legislative 
or  quasi-judicial  combina- 
tion. 

Municipal  division  of  pow- 
ers. 

Judges  acting  as  executives. 

Legislative  branch. 

Municipal  legislative  power 
limited. 

State  legislative  infringe- 
ment upon  judicial  power 
not  prohibited  by  Federal 
Constitution. 

Division  of  powers  in  state 
governed  by  state  consti- 
tution. 

Judicial  action  of  legisla- 
ture prohibited. 

Legislation  by  "the  peo- 
ple. ' ' 

Legislative  power  can  not 
be  delegated. 

Executive  assumption  of 
legislative  power. 

Executive  emergency. 

Executive  assumption  of 
judicial    power. 

Executive  duty  to  give  leg- 
islature   information. 

Executive   orders,   law? 


55 


56  PUBLIC   HEALTH  ADMINISTRATION 

§  101.  Power       yielded       because  §  108.  Legislation     more     -needful 

claimed  is  not  sanctioned.  in    decentralized    govern- 

§  102.  Executive  orders  and  regu-  ment. 

lations,  limitations  of.  $  109-  Legislation    definite    in    ef- 

§  103.  Legislative  limitations.  ect' 

.  ,„.    -p.  »  ,  §  110.  Agreement      of      three 

§  104.  Due  process  of  law.  *  ° 

§105.  Public      health     protection,  ^c         nece       7- 

§  111.  Executive       semi-legislative 
police  power.  ,     . 

|  106.  Public       health       activities  §  m    IUegal   ;tatutes> 

based  upon  idea  of  "nui-  §  113>  Crazy-quilt    legislation, 

sance.  §  H4#  Executive   duty  to   systema- 

§  107.  Lack  of  legislation,  a  source  tize  enacted  statutes. 

of    executive    weakness.  §  115.  Limitation    and    distinction. 

§  65.  The  anatomy  and  physiology  of  government. 

The  study  of  the  structure  of  government  properly  be- 
longs to  that  branch  of  legal  science  known  as  con- 
stitutional law.  This  "deals  with  the  anatomy  of 
government;  administrative  law  and  administration 
have  to  do  with  the  functions,  the  physiology  of  govern- 
ment, so  to  speak."1  While  we  are  especially  inter- 
ested in  the  operation,  rather  than  in  the  structure,  it 
will  be  necessary,  first  of  all,  to  examine  into  the  or- 
ganization, and  motive  influences  which  may  be  found 
in  the  different  divisions. 

§  66.  Three  branches  of  government.  In  all  systems 
of  government  there  are  three  agencies,  namely,  Legis- 
lative, Executive,  and  Judicial.  These  agencies  may  be 
united  in  one  person,  as  in  an  absolute  monarchy;  or, 
they  may  be  united  in  the  mass  of  the  populace,  as  in 
the  French  commune.  They  may  be  partially  divided, 
as  in  Great  Britain,  and  in  Belgium;  or  they  may  be 
absolutely  separated  as  in  the  United  States.  To  the 
degree  that  they  are  united  we  have  despotism,  either 
of  the  individual,  or  of  the  majority.    When  they  are 

1  Goodnow,  Ad.  Law,  p.  3. 


THE  TRIPLE  SYSTEM   OF   GOVERNMENT  57 

separated  each  power  acts  as  a  check  upon  the  other, 
thus  preserving  the  balance  of  power.  With  this 
separation  the  individual  citizen  secures  the  greatest 
possible  liberty. 

Mr.  Daniel  Webster  says:2  "The  first  object  of  a 
free  people  is  the  preservation  of  their  liberty,  and 
liberty  is  only  to  be  preserved  by  maintaining  con- 
stitutional restraints  and  just  divisions  of  power. 
Nothing  is  more  deceptive,  or  more  dangerous,  than  the 
pretence  of  a  desire  to  simplify  government.  The  sim- 
plest governments  are  despotisms;  the  next  simplest, 
limited  monarchies;  but  all  republics,  all  governments 
of  the  law,  must  impose  numerous  limitations  and  qual- 
ifications of  authority,  and  give  many  positive  and 
many  qualified  rights.  In  other  words  they  must  be 
subject  to  rule  and  regulation.  This  is  the  very  es- 
sence of  free  political  institutions.  *  *  *  We  may 
easily  bring  it  to  the  simplest  of  all  possible  forms, 
a  pure  despotism.  But  a  separation  of  departments  so 
far  as  practicable,  and  the  preservation  of  clear  lines 
of  division  between  them,  is  the  fundamental  idea  in 
the  creation  of  all  our  constitutions ;  and  doubtless  the 
continuance  of  regulated  liberty  depends  upon  main- 
taining these  boundaries.' ' 

§  67.  Separation  of  powers  often  ignored  in  public 
health  administration.  The  importance  of  this  separa- 
tion of  powers  is  frequently  forgotten  in  zeal  for  pub- 
lic health  work.  The  executive  has  sometimes  sought 
to  exert  legislative  power,  or  he  has  failed  to  appre- 
ciate the  fact  that  he  has  not  been  entrusted  with  judi- 
cial prerogatives.  One  reason  for  this  condition  is  that 
until  very  recently  the  science  of  preventive  medicine 

2  Webster,  Vol.  IV,  p.  122. 


58  PUBLIC    HEALTH   ADMINISTRATION 

was  so  indefinite  that  general  rules  could  not  well  be 
formulated.  The  facts  were  uncertain.  Under  the 
police  power  (Chap.  VI),  the  health  administration 
was  of  necessity  specific,  and  applied  to  one  case  at  a 
time.  It  was  essentially  local,  and  had  little  refer- 
ence or  bearing  upon  the  affairs  of  state  or  nation. 
The  science  has  developed,  and  there  is  no  longer  ex- 
cuse for  unconstitutional  practices  in  health  preserva- 
tion. Unfortunately,  the  present  condition  has  been 
so  long  tolerated  that  the  necessity  for  a  change  has 
not  been  generally  recognized.  "The  time  has  come 
when  the  Constitution  and  laws  of  the  United  States 
are  not  the  mere  theoretical  object  of  the  thoughts  of 
the  statesman,  the  lawyer,  or  the  man  of  affairs;  for 
the  operations  of  its  government  now  reach  the  re- 
cesses of  every  man's  business,  and  force  themselves 
upon  every  man 's  thoughts. ' ' 3 

§  68.  Importance  of  triple  system.  It  seems  there- 
fore necessary  to  devote  some  space  to  the  funda- 
mental principles  involved  in  the  separation  of  powers, 
as  prescribed  by  the  Constitution  of  the  United  States, 
and  by  those  of  most  of  the  individual  states.  In  look- 
ing over  the  numerous  decisions  referring  to  health 
measures,  and  in  reading  the  discussions  of  medical 
men,  one  can  hardly  avoid  being  impressed  with  the 
fact  that  the  very  ignoring  of  this  extremely  important 
idea  is  the  greatest  obstacle,  and  source  of  weakness 
in  the  service. 

§  69.  Union  of  powers,  tool  of  tyranny.  Paley  in 
his  Moral  and  Political  Philosophy  has  thus  expressed 
himself  upon  this  point.4    "The  first  maxim  of  a  free 

3  Miller,  On  the  Constitution,  p.  4  Book  VI,  Chap.  VIII. 

107. 


THE   TRIPLE   SYSTEM   OP    GOVERNMENT  59 

state  is  that  the  laws  be  made  by  one  set  of  men  and 
administered  by  another.  In  other  words,  that  the 
legislative  and  judicial  characters  be  kept  separate." 
Jefferson  called  the  union  of  powers  an  "elective 
despotism,"  and  the  Federalist  speaks  of  such  union 
as  "the  very  definition  of  tyranny."  "In  all  tyran- 
nical governments,"  says  Blackstone,5  "the  same 
magistracy,  or  the  right  both  of  making  and  of  en- 
forcing laws,  is  vested  in  the  same  man,  or  one  and 
the  same  body  of  men,  and  whenever  these  powers  are 
united  together  there  can  be  no  public  liberty. ' '  Again, 
he  says6  that  public  liberty  "cannot  long  subsist  in 
any  state  unless  the  administration  of  common  justice 
be  in  some  degree  separated  from  the  legislative  and 
also  the  executive  power.  Were  it  joined  with  the  leg- 
islative, the  life,  liberty,  and  property  of  the  subject 
would  be  in  the  hands  of  arbitrary  judges,  whose  de- 
cisions would  then  be  regulated  only  by  their  opinions, 
and  not  by  any  fundamental  principles  of  law;  which 
though  legislators  may  depart  from,  yet  judges  are 
bound  to  observe.  Were  it  joined  with  the  legislative, 
this  union  might  soon  be  an.  overbalance  for  the  leg- 
islative. ' ' 

§  70.  No  liberty  with  powers  united.  This  same  idea 
is  thus  expressed  by  Montesquieu;7  "When  the  legis- 
lative and  executive  powers  are  united  in  one  person, 
or  in  the  same  body  of  magistrates,  there  can  be  no 
liberty ;  because  apprehensions  may  arise  lest  the  same 
monarch  or  senate  should  enact  tyrannical  laws,  or 
execute  them  in  a  tyrannical  manner.  Again,  there  is 
no  liberty  if  the  judiciary  power  be  not  separated  from 

5  Commentaries,  I,  146.  "  B.  II,  Chap.  6. 

s  Commentaries,  I,  269. 


60  PUBLIC    HEALTH   ADMINISTRATION 

the  legislative  and  executive.  Were  it  joined  with  the 
legislative,  the  life  and  liberty  of  the  subject  would  be 
exposed  to  arbitrary  control,  for  the  judge  would  be 
the  legislator.  Were  it  joined  to  the  executive  power, 
the  judge  might  behave  with  violence  and  oppression. ' ' 
Once  more  we  must  remember  the  dictum  of  Lieber : 8 
''Authentic  interpretation  is  no  interpretation,  but 
rather  additional  legislation. ' '  How  this  division  has 
worked  for  the  safeguarding  of  personal  liberty  may 
be  estimated  by  considering  the  statement  of  Pome- 
roy:9  "No  other  check  has  proved  so  effectual  as  the 
division  of  functions  into  legislative,  executive,  and 
judicial,  and  their  assignment  to  classes  of  officials 
physically  separate." 

§71.  Separation  of  powers  purely  Anglican.  This 
separation  of  powers  is  essentially  Anglican,  and  has 
been  of  slow  growth.  It  was  unknown  in  the  earlier 
civilizations,  and  is  not  yet  complete  in  any  European 
nation.  It  was  five  and  a  half  centuries  after  the 
Magna  Charta  that  the  American  colonies  revolted 
from  the  British  rule,  and  in  their  separation  from 
the  mother  country  they  very  naturally  separated  still 
further  the  three  powers.  They  did  this  to  insure  as 
much  as  possible  of  individual  liberty,  and  they  were 
free  to  make  use  of  every  known  advantage  in  govern- 
ment, unhampered  by  existing  systems.  For  a  time 
they  attempted  to  work  as  a  confederation,  but  realiz- 
ing the  weakness  and  the  danger  in  such  a  loose  organ- 
ization they  formed  the  nation,  and  bound  themselves 
by  a  Constitution,  which  is  today  perhaps  the  most 
perfect  document  of  its  kind  in  existence.  The  indi- 
vidual states  have  also  adopted  constitutions  modeled 
after  that  of  the  nation. 

s  Chap.  18,  p.  208.  o  Constitutional    Law,    Sec.    170. 


THE    TRIPLE   SYSTEM    OP    GOVERNMENT  61 

§  72.  Separation   most   perfect    in   United   States. 

Neither  in  England,  nor  in  the  British  colonies,  is  the 
separation  of  powers  as  distinct  and  perfect  as  it  is 
in  the  United  States.  In  England  the  interpretation 
of  the  laws  is  partially  in  the  hands  of  the  members 
of  the  House  of  Lords,  and  the  executive  branch  is 
much  more  closely  intertwined  with  the  legislative.  In 
Canada,  by  the  British  North  American  Act  of  1867,10 
the  initiative  for  certain  kinds  of  legislation  is  re- 
served to  the  Governor  General. 

§73.  Union  of  Powers  in  European  governments. 
The  right  of  the  chief  executive  to  initiative  in  legis- 
lation is  common  in  European  constitutions.  This  is 
found  in  the  German  Empire,11  in  Italy,12  and  in 
France.13  In  Belgium  14  the  king  holds  a  third  of  the 
legislative  power,  and  has  the  initiative  upon  legisla- 
tive matters.  Also  we  find : 15  "  The  interpretation 
of  laws  by  authority  belongs  only  to  the  legislative 
power."  Such  interpretation  is  in  reality  new  legis- 
lation. It  gives  an  uncurbed  power  for  oppression, 
which  would  not  be  tolerated  in  Anglican  communities. 
So  too  if  the  executive  and  judicial  powers  are  united, 
either  in  one  person,  or  in  a  body  of  men,  tyranny 
becomes  easy.  Every  citizen  has  rights,  and  one  of 
them  is  the  assurance  that  the  strong  arm  of  the  law 
will  protect,  and  not  oppress  him.  This  union  of 
powers  as  found  in  Belgium  gives  a  supremacy  with- 
out check.  In  its  operation  it  may  easily  result  in 
what  we  call  ex  post  facto  legislation,  clearly  hostile 

io  Sections  53   and   54.  is  Cons.  1875,  Art.  3. 

ii  Constitution      1871,  Articles  i*  Constitution     1893,     Art.     26 

15,  16.  and  27. 

12  Cons.  1848,  Art.  6.  is  Art.  28. 


62  PUBLIC    HEALTH    ADMINISTRATION 

to  individual  liberty,  and  repugnant  to  Anglican  spirit. 
It  enables  the  legislative  body  in  the  interpretation  of 
a  law  to  make  criminal,  and  therefore  punishable, 
that  which  when  committed  was  no  crime,  unless  by 
extreme  stretching  of  existing  statutes.  Mr.  Justice 
Miller  says : 16  ' i  Under  the  boasted  constitution  of 
Great  Britain  there  are  many  instances  in  which  a 
man  has  been  condemned  to  death  by  its  Parliament 
without  any  reference  to  any  statute  or  law  existing 
at  the  time  authorizing  such  proceeding." 

§  74.  Abuse  of  power  may  not  be  frequent.  It  is 
true  that  in  wise  hands  abuse  of  power  is  not  frequent, 
but  the  possibility  shows  the  necessity  for  safeguard- 
ing individual  rights  as  much  as  possible. 

§75.  Paper  constitutions.  A  " paper  constitution," 
as  Governeur  Morris  called  it,  may  be  weak,  and  it 
might  give  a  false  sense  of  security.  The  real  consti- 
tution must  be  engrafted  upon  the  hearts  of  the  peo- 
ple. It  must  find  its  life  coincident  with  the  lives  of 
the  citizens.  The  importance  of  the  individual  is  an 
idea  peculiar  to  the  Anglo-Saxon,  and  it  is  foreign  to 
the  nature  of  the  Latin  races. 

§  76.  Basis  for  comparison  of  governments.  In  com- 
paring different  systems  of  government,  one  must  con- 
sider the  character  of  the  peoples,  geographical  con- 
ditions, and  especially  the  history  of  the  population. 
As  Sir  James  Bryce  has  said,17  "A  nation  is  the  child 
of  its  own  past. ' '  Perhaps  Governeur  Morris  was  too 
severe  in  calling  certain  documents  "  paper  constitu- 
tions. ' '  Much  depends  upon  the  point  of  view.  To  us 
the  Constitution  of  Brazil,  modeled  upon  that  of  the 
United  States,  seems  but  paper.    To  the  Brazilian  it 

i«  Constitution,  p.  105.  1T  South  America,   418. 


THE   TRIPLE   SYSTEM   OF    GOVERNMENT  63 

is  real,  though  he  cannot  see  as  much  in  it  as  we  do. 
He  studies  our  court  decisions  as  we  do,  and  then  of 
necessity  he  violates  the  precepts.  The  great  trouble 
was  that  the  Latin  Americans  translated  the  words 
of  our  Constitution,  but  they  were  unable  to  translate 
its  spirit.  What  Mr.  Eder  says,  relative  to  Colombia, 
is  equally  true  relative  to  all  Latin  America:  "The 
United  States  Constitution  was  the  result  of  a  natural 
evolution,  a  product  of  the  brains  of  men  steeped  in 
the  common  law,  learned  in  their  Coke  and  their  Black- 
stone,  jealous  of  their  hereditary  rights  and  liberties ; 
while  adopting  new  external  forms,  its  inner  spirit 
was  essentially  a  common  law  spirit:  almost  every 
phrase  was  pregnant  with  historical  meaning,  engen- 
dered by  an  ancestry  of  ancient  statutes  and  decisions. 
It  was  obviously  a  mistake  to  attempt  to  graft  such 
an  alien  institution  on  a  people  bred  in  the  Spanish 
civil  law,  instead  of  revitalizing  the  existing  Spanish 
institutions  and  breathing  into  them — no  easy,  yet  no 
impossible  task — the  modern  spirit  of  liberty.  The 
consequence  has  been  that  the  Colombians,  a  few  ex- 
ceptions apart,  have  never  really  understood,  do  not 
today  understand,  their  own  Constitution,  which  is  a 
translation  wherein  words  and  phrases  have  lost  much 
of  their  historic  significance,  and  in  which  the  precious 
safeguards  of  individual  right  and  the  admirable  sys- 
tem of  checks  and  balances  seem  to  have  been  entirely 
lost."18 

We  must  not  be  misled  by  mere  names.  It  is  quite 
possible  that  Great  Britain,  though  a  limited  mon- 
archy, may  be  more  truly  democratic  than  any  South 
American  republic.    Nominally  the  states  of  Java  are 

is  Eder,  Colombia  (1913).  p.  57. 


64  PUBLIC    HEALTH   ADMINISTRATION 

governed  by  native  regents.  Practically  the  ruling 
powers  are  the  Dutch  regents,  officially  recognized  as 
the  "elder  brothers."  Even  with  the  same  general 
basic  ideas,  the  real  government  of  a  closely  settled, 
homogenous  people  like  that  of  Rhode  Island,  must 
differ  widely  from  that  of  a  country  like  Bolivia, 
inhabited  by  two  races  having  little  in  common,  and 
very  widely  separated. 

§  77.  Confederation  not  a  nation.  A  confederation 
is  not  really  a  nation.  The  Achaean  League  lasted 
from  281  to  146,  B.  C.  The  Swiss  confederation  began 
in  1291  as  a  union  of  three  cantons,  and  has  spread 
and  endured  to  the  present.  The  seven  United  Pro- 
vinces of  the  Netherlands  endured  from  1579  to  1795. 
The  United  States  of  (North)  America  is  the  first 
enduring  grand  republic.  It  must  be  remembered  that 
the  Swiss  confederation  has  been  preserved,  not  so 
much  by  its  inherent  strength,  as  by  circumstances. 
Composed  of  numerous  (twenty- two)  small  states,  or 
cantons,  with  common  interests,  enclosed  in  a  moun- 
tainous country,  and  surrounded  by  France,  Italy, 
Austria,  and  Germany,  each  jealous  of  the  other,  there 
is  little  to  threaten  its  existence.  In  framing  the  con- 
stitution of  1848  the  committee  of  fourteen  carefully 
studied  the  American  Constitution;  but  the  present 
constitution,  bearing  the  date  of  May  29,  1874,  with 
amendments  since  adopted,  in  some  particulars  differs 
widely  from  the  American  ideal. 

§78.  Permanence  of  Nation  depends  upon  individ- 
ual restriction.  It  must  be  well  recognized  that,  es- 
pecially in  a  republic,  the  permanency  of  the  govern- 
ment must  depend  upon  the  restrictions  placed  upon 
the  assumption  of  undue  authority  by  ambitious  indi- 


THE   TRIPLE   SYSTEM    OP    GOVERNMENT  65 

viduals.  The  permanence  of  the  United  States  there- 
fore is  due  in  no  small  degree  to  the  wisdom  shown 
by  the  framers  of  our  constitution,  and  its  provisions 
should  not  be  violated  carelessly. 

§  79.  Latin  American  government.  Considering  the 
success  of  the  United  States,  it  is  not  strange  that 
other  nations  have  taken  its  constitution  as  a  model. 
This  is  especially  true  of  the  republics  of  Latin  Amer- 
ica. Thus  we  find  in  the  constitution  of  Mexico : 19 
"The  supreme  power  of  the  Federation  is  divided  for 
its  exercise  into  legislative,  executive,  and  judicial. 
Two  or  more  of  these  powers  shall  never  be  united  in 
one  person  or  corporation,  nor  that  legislative  power 
be  deposited  in  one  individual."  So  also  the  consti- 
tution of  Brazil20  provides  that  they  shall  be  sepa- 
rate, but  in  Argentina  there  is  a  provision21  for  leg- 
islative initiative  by  the  executive.  Professor  Pen- 
nington, in  speaking  of  this  constitution  says : 22  "  Un- 
fortunately, as  is  the  case  with  all  human  documents, 
there  are  ways  and  means  of  driving  the  traditional 
coach  and  four  through  the  constitution  of  Argentina 
as  through  a  British  Act  of  Parliament ;  but,  taken  as 
it  stands,  it  is  a  notable  foundation  for  the  life  of  a 
nation."  But  W.  A.  Hirst  has  hit  the  nail  on  the 
head  for  all  of  Latin  America  when  he  said23  in 
speaking  of  this  same  country:  "The  hotblooded 
Creole,  who  for  centuries  had  been  subject  to  a  pater- 
nal government,  was  altogether  unfitted  for  Parlia- 
mentary institutions. ' '  In  speaking  of  all  Latin  Amer- 
ica  except   Chile   and   Argentina,    Sir  James   Bryce 

is  Article  50.  22  The        Argentine       Republic 

20  Article  15.  (1910),  p.  59. 

2i  Chap.  V,  Art.  68.  23  Argentina  (1910),  p.  122. 


66  PUBLIC  HEALTH  AD-MINISTRATION 

says 24  that  these  states  never  have  been  democracies 
in  any  real  sense  of  the  word.  They  could  not  have 
been  democracies.  "To  expect  peoples  so  racially 
composed,  very  small  peoples,  spread  over  a  vast  area, 
peoples  with  no  practice  in  self-government,  to  be  able 
to  create  and  work  democratic  institutions  was  absurd, 
though  the  experience  which  their  history  has  fur- 
nished to  the  world  was  needed  to  demonstrate  the 
absurdity,"  and  injustice  is  done  to  Spanish  Amer- 
icans by  censures  and  criticisms  which  ignore  these 
fundamental  facts. 

§80.  Misjudgment.  This  difference  in  the  natures 
of  the  people,  and  the  relationship  thereof  to  the  re- 
publican form  of  government,  is  frequently  misunder- 
stood, and  may  be  misleading  in  considering  methods 
of  administration.  Thus  we  find  Mr.  Justice  Miller 
saying:25  "It  is  with  sorrow  and  regret  that  we  see 
their  descendants  on  this  side  of  the  Atlantic,  Spanish 
republics  they  call  themselves,  evince  scarcely  more 
respect  for  written  constitutions  than  the  country 
from  which  they  came."  Nominally  Mexico  is  a  re- 
public, but  in  reality  it  is  of  necessity  an  empire.  For 
these  countries  a  constitution  is  as  a  point  ahead,  to 
guide  the  progress  of  the  nation,  and  to  attain.  For 
the  Anglican,  a  constitution  is  a  limit  beyond  which 
neither  ruler  nor  individual  citizen  may  pass. 

§81.  United  States,  division  of  powers.  In  the 
United  States  the  Federal  Constitution  defines  the 
agencies  of  the  three  powers,  giving  to  the  President, 
the  supreme  executive,  no  judicial  power,  and  only 
the  negative  legislative  power  of  the  veto,  which  may 
be  overruled.    The  legislative  power  resides  in  Con- 

24  South  America,  p.  539.  25  Constitution,  p.  70. 


THE   TRIPLE   SYSTEM    OF    GOVERNMENT  67 

gress,  which  has  no  executive  power,  further  than  the 
approval  of  certain  executive  acts  such  as  appoint- 
ments, and  the  making  of  treaties.  Congress  has  judi- 
cial power  only  as  to  its  own  membership,  and  for 
impeachment  trials.  Authoritative  interpretation  of 
the  laws  resides  only  in  the  courts,  which  have  abso- 
lutely no  executive  nor  legislative  power  further  than 
is  necessary  for  their  own  guidance.  It  is  true  that  the 
President  may  in  his  message  suggest  legislation,  but, 
unlike  the  French  or  English  systems,  the  American 
President  has  no  power  of  initiative  in  legislation. 

§82.  State  constitutional  provisions.  In  many  of 
the  state  constitutions  we  find  a  section  defining  still 
further  this  separation  of  powers.  Thus,  that  adopted 
by  Virginia  in  1902  says:26  " Except  as  hereinafter 
provided,  the  legislative,  executive,  and  judiciary  de- 
partments, shall  be  separate  and  distinct,  so  that 
neither  exercise  the  powers  properly  belonging  to 
either  of  the  others,  nor  any  person  exercise  the  power 
of  more  than  one  of  them  at  the  same  time."  Sim- 
ilarly the  constitution  of  California  provides : 2T  "  The 
powers  of  the  government  of  the  state  of  California 
shall  be  divided  into  three  separate  departments,  the 
legislative,  executive,  and  judicial;  and  no  person 
charged  with  the  powers  properly  belonging  to  the 
one  of  these  departments  shall  exercise  any  functions 
appertaining  to  either  of  the  others,  except  as  in  the 
constitution  expressly  directed  or  permitted.' '  The 
Illinois  constitution  of  1870  provides : 28  "  The  powers 
of  the  government  of  this  state  are  divided  into  three 
distinct  departments — the  legislative,  executive,  and 

26  Sec.  39.  28  Article  III. 

27  Article  IV,  Sec.  1. 


68  PUBLIC   HEALTH   ADMINISTRATION 

judicial :  and  no  person  or  collection  of  persons,  being 
one  of  these  departments,  shall  exercise  any  power 
properly  belonging  to  either  of  the  others,  except  as 
hereinafter  expressly  directed  or  permitted." 

§  83.  Lack  of  distributive  clause.  In  all  the  states 
we  find  the  same  division  of  powers  as  in  the  Federal 
Constitution,  though  in  some  the  distributive  clause, 
such  as  is  found  in  the  constitutions  of  Virginia,  Cali- 
fornia, Illinois,  Oklahoma,  Alabama,  Arkansas,  etc., 
may  be  omitted,  as  it  is  in  the  Federal  Constitution. 
Practical  experience  has  demonstrated  the  necessity 
for  this  clear  statement  of  the  law.  In  the  absence  of 
the  distributive  clause  there  might  be  a  little  liberty 
of  interpretation  as  to  the  extent  of  this  division  of 
powers.  The  interpretation  as  to  the  Federal  Consti- 
tution is  not  absolutely  binding  upon  the  state  courts 
in  interpreting  the  constitutions  of  their  respective 
states,  and  a  slight  degree  of  divergence  has  thus  been 
introduced.  Especially  when  the  distributive  clause 
is  present,  any  legislation  which  passes  the  limits  thus 
prescribed  is  unconstitutional,  and  therefore  no  law. 

§  84.  Danger  of  congressional  usurpation  of  power. 
In  speaking  of  the  Federal  Constitution,  though  equal- 
ly applying  to  interpretation  of  state  constitutions, 
Pomeroy  says : 29  "I  am  strongly  of  the  opinion  that 
the  people  of  the  United  States  are  not  in  so  much  dan- 
ger from  an  undue  stretch  of  authority  by  President  or 
by  judges,  as  from  unlawful  assumptions  by  Congress. 
The  Constitution  is  well  as  far  as  it  goes;  the  design 
was  good;  the  checks  and  balances  were  carefully  and 
skillfully  arranged ;  but  no  mere  organic  law  can  place 
a  lasting  barrier  to  the  advance  of  a  popular  legisla- 

29  Constitutional  Law,  Sec.   186. 


THE   TRIPLE    SYSTEM    OF    GOVERNMENT  69 

ture.  Step  by  step  their  powers  are  exceeded;  the 
nation  acquiesces ;  the  precedent  becomes  established ; 
and  a  system  of  construction  is  finally  elaborated 
which  takes  the  place  of  the  written  constitution  as  a 
practical  guide  to  the  government  in  its  official  du- 
ties." While  it  may  be  that  the  executive  branch  is 
more  likely  to  assume  legislative  powers,  than  is  the 
legislative  branch  to  attempt  to  use  power  not  prop- 
erly its  own,  still  it  must  be  admitted  that  the  courts 
act  as  efficient  checks  upon  the  executive,  even  when 
they  might  be  restrained  from  similar  action  upon 
minor  errors  of  the  legislature. 

§  85.  Illegal  custom  lacks  sanction.  Any  practice  or 
usage,  no  matter  of  how  long  duration,  which  permits 
or  contemplates  a  union  of  powers  is  forbidden  and 
illegal.  "  Abuses  of  power,  and  violations  of  right, 
derive  no  sanction  from  time  or  custom."30  This 
applies  equally  to  affairs  of  the  nation,  state,  or  muni- 
cipality. 

§86.  Executive  quasi-legislative  or  quasi-judicial 
combination.  It  is  frequently  necessary  for  executive 
departments  to  formulate  rules,  or  orders,  which  is 
a  quasi-legislative  action,  or  to  act  in  a  quasi-judicial 
manner.  Though  the  letter  of  the  constitution  might 
not  prohibit  such  action  by  one  person,  or  board,  and 
at  the  same  time  that  the  person  or  board  is  employed 
in  a  purely  executive  manner,  the  spirit  of  the  prohi- 
bition would  dictate  that  as  far  as  is  possible,  even  in 
executive  departments,  quasi- judicial,  or  quasi-legisla- 
tive duties  be  divorced  from  the  purely  executive.  For 
example :    If  the  same  body  decides  what  shall  be  the 

so  Hood     v.     Lynn,      1      Allen 
(Mass.)   103. 


70  PUBLIC   HEALTH   ADMINISTRATION 

requirements  as  to  medical  education  to  entitle  an  ap- 
plicant to  a  license,  (quasi-legislative  action)  and  ex- 
amines applicants  for  license,  (quasi- judicial  action), 
and  determines  whether  the  law  has  been  violated, 
(also  quasi- judicial  action),  and  in  an  executive  pro- 
cedure either  prosecutes  for  practice  without  license, 
or  begins  action  for  the  annulment  of  a  license,  it  is 
easy  to  suspect  an  improper  bias  in  some  one  of  these 
operations.  Such  power  is  too  great  to  be  entrusted 
to  one  body,  and  in  the  past  it  has  given  rise  to  charges 
of  corruption.  Similarly,  under  the  old  Tweed  regime 
in  New  York,  the  union  of  the  quasi- judicial  duties  of 
an  inspector  in  the  health  department,  with  purely 
executive  responsibilities,  opened  the  door  for  fraud 
and  oppression. 

§  87.  Municipal  division  of  powers.  The  same  divi- 
sion of  powers  should  be  observed  in  municipal  ad- 
ministration for  the  best  results,  but  the  courts  have 
not  always  been  strict  in  this  interpretation. 

§  88.  Judges  acting  as  executives.  Readers  of  his- 
tory may  note  that  sometimes  members  of  the  Supreme 
Court  of  the  United  States  have  at  the  same  time  held 
executive  positions.  John  Jay,  Chief  Justice  from  1789 
to  1795,  was  during  a  portion  of  that  time,  Minister 
to  England.  John  Marshall,  that  great  authority  upon 
Constitutional  Law,  retained  his  position  as  Secretary 
of  State  for  two  or  three  months  after  his  appointment 
to  the  position  of  Chief  Justice.  More  recently,  Mr. 
Charles  Hughes  continued  to  hold  the  office  of  Governor 
of  New  York,  after  he  was  appointed  to  the  Supreme 
Bench.  In  no  instance,  however,  did  these  men  sit 
upon  the  bench  while  holding  the  executive  position. 

§89.  Legislative  branch.    The  legislative  power  of 


THE   TRIPLE   SYSTEM    OF    GOVERNMENT  71 

the  nation  rests  solely  in  Congress.  That  of  states  is 
confined  to  the  legislatures,  or  general  assemblies.  The 
legislative  power  of  municipalities  is  found  in  the  city 
councils,  or,  under  the  commission  form  of  govern- 
ment, in  the  entire  commission.  As  to  municipalities 
it  must  be  remembered  that  they  have  only  such  powers 
as  are  distinctly  granted  to  them  by  the  state.  The 
state  is  the  political  entity.  It  is  true  that,  as  Mr. 
Justice  Allen  has  said  in  People  v.  Albertson : 31  "  The 
right  of  (local)  self  government  lies  at  the  foundation 
of  our  institutions,"  but  that  remark  applies  to  the 
purely  internal  matters  of  a  community.  Since  the 
city  must  depend  upon  the  state  for  its  authority,  and 
because  the  legislature  is  unrestricted 32  in  its  prescrib- 
ing the  powers  and  duties  in  cities,  (except  of  course 
by  the  Federal  and  state  constitutions),  the  work  of  a 
city  council,  or  of  a  city  commission,  is  largely  of  an 
executory  nature,  and  its  legislation  has  not  the  dig- 
nity of  law,  or  statutory  enactment.  In  England  the 
enactments  of  these  public  corporations  are  called  by- 
laws, and  in  the  United  States  we  designate  them  as 
ordinances.  They  partake  more  of  the  nature  of  reg- 
ulations. This  general  rule  is  thus  stated  by  Professor 
Freund : 33  "  Under  the  principle  of  local  self-govern- 
ment local  authorities  cannot  be  vested  with  powers 
necessarily  exceeding  their  territorial  jurisdiction; 
those  matters  therefore  which  equally  affect  the  people 
of  the  state  at  large,  and  cannot  be  confined  locally, 
must  be  reserved  to  the  state  legislature.  Moreover, 
the  inauguration  of  a  novel  policy  in  matters  of  safety 
and  health,  the  prohibition  of  articles  of  consumption 

si  55  N.  Y.,  50.  33  Police  Power,  Sec.  142. 

32  Jameson  v.  People,  16  111.  257. 


72  PUBLIC   HEALTH   ADMINISTRATION 

possibly  but  not  undoubtedly  injurious  to  health,  the 
establishment  of  monopolies,  the  restriction  of  the  right 
to  pursue  established  avocations,  may  under  circum- 
stances be  conceded  to  the  legislature  of  the  state,  but 
cannot  be  introduced  by  local  authorities  under  mere 
general  grants  of  power."  Judge  Dillon  thus  defines 
the  general  authority  of  municipalities.34  "  It  is  a  gen- 
eral and  undisputed  proposition  of  law  that  a  municipal 
corporation  possesses  and  can  exercise  the  following 
powers,  and  no  others:  first,  those  granted  in  express 
words ;  second,  those  necessarily  or  fairly  implied  in  or 
incident  to  the  powers  expressly  granted;  third,  those 
essential  to  the  declared  objects  and  purposes  of  the 
corporation — not  simply  convenient,  but  indispensable. 
Any  fair,  reasonable  doubt  concerning  the  existence 
of  power  is  resolved  by  the  courts  against  the  corpora- 
tion and  the  power  is  denied. " 35   (See  Chapter  IX.) 

§90.  Municipal  legislative  power  limited.  The 
power  of  the  municipality  to  legislate  is  therefore  ab- 
solutely dependent  upon  the  permission  of  the  state; 
and  an  ordinance  passed  by  a  city  not  only  has  a  lim- 
ited territorial  authority,  but  it  is  limited  as  to  sub- 
stance, and  may  at  any  time  be  rendered  illegal  by  the 
action  of  the  state  legislature,  as  representing  the  su- 
preme will  of  the  people.  In  other  words,  municipal 
ordinances  are  simply  regulations  providing  for  the 
transaction  of  such  business  as  may  be  entrusted  to  the 
corporation  by  the  state.  Moreover,  the  division  of 
powers  as  prescribed  in  the  state  constitutions  is  with 
regard  to  the  operations  of  the  state,  and  does  not 
necessarily  restrict  municipal  corporations  in  a  like 
manner. 

34  Municipal      Corporations,      I,  35  See  also  Fairlie,  p.  387. 

145. 


THE   TRIPLE   SYSTEM    OF    GOVERNMENT  73 

§91.  State  legislative  infringement  upon  judicial 
power  not  prohibited  by  Federal  Constitution.  It 
sometimes  happens  that  legislation  has  partaken  of 
the  nature  of  judicial  procedure.  The  division  of 
powers  in  the  Federal  Constitution  does  not  prevent 
such  union  in  the  operations  of  the  individual  states. 
"There  is  nothing  in  the  Constitution  of  the  United 
States  which  forbids  the  legislature  of  a  state  to  exer- 
cise judicial  functions."36  "A  legislature  cannot, 
however,  declare  what  the  law  was,  but  what  it  shall 
be. ' ' 37    This  distinction  is  important. 

§  92.  Division  of  powers  in  state  governed  by  state 
constitution.  The  prohibition  against  the  assumption 
of  judicial  powers  by  a  state  legislature  must  be  found 
in  the  constitution  of  that  particular  state.  It  is  true 
that  often  the  legislature  may  not  recognize  the  fact 
that  it  has  been  assuming  powers  not  its  own;  and  the 
courts  will  not  act  to  prevent  such  action  until  a  case 
is  brought  before  them.  In  the  earlier  days  in  Ohio 
the  legislature  got  into  the  habit  of  granting  divorces 
by  statutory  enactment.  Finally  it  was  realized  that 
great  harm  had  been  done.  The  acts  were  unconstitu- 
tional. To  declare  such  divorces  illegal,  however, 
would  injure  many  innocent  persons,  by  the  making  of 
subsequent  remarriages  illegal,  and  hence  the  children 
thus  born,  illegitimate.  Not  only  so,  but  the  title  to 
much  of  the  property  in  the  state  might  be  invalidated. 
This  illustration  again  shows  the  necessity  of  observ- 
ing the  restrictions  found  in  the  constitution. 

§  93.  Judicial  action  of  legislature  prohibited.  The 
legislature  of  Tennessee  passed  a  resolution  directing 

36  Saterlee     v.     Matthewson,     2  37  Ogden       v.       Blackledge,       2 

Peters,  413.  Cranch.  272. 


74  PUBLIC    HEALTH   ADMINISTRATION 

the  discharge  of  a  criminal  by  a  court.  The  resolution 
was  declared  an  unconstitutional  assumption  of  power 
by  the  legislature,  and  an  invasion  of  the  power  of  the 
judicial  department,  and  therefore  void.38  A  legis- 
lature cannot  grant  a  new  trial,  nor  direct  a  court  to  do 
so.39 

§  94.  Legislation  by  '  'the  people. ' '  There  is  at  pres- 
ent a  tendency  to  take  from  the  legislature  a  portion  of 
its  legislative  power,  by  means  of  the  initiative  and 
referendum.  Since  the  real  source  of  power  is  in  the 
people,  they  have  the  undoubted  right  by  constitution- 
al amendment  to  make  such  a  reservation.  In  some  in- 
stances it  may  work  very  satisfactorily.  Whether  it  be 
advisable  or  not  may  be  questioned,  for  it  reduces  the 
responsibility  of  the  members  of  the  legislature.  It 
is  also  a  very  grave  question  whether  or  not,  with  the 
large  proportion  of  foreign  born,  uneducated,  and  ir- 
responsible citizens,  a  popular  vote  is  a  safe  guide  in 
matters  of  legislation.  It  takes  from  the  enacting- 
power  the  opportunity  for  wise  consideration.  It 
makes  it  a  matter  of  comparative  ease  for  a  corrupt 
and  designing  corporation  to  secure  legislation  which 
no  responsible  body  of  men,  intelligent  enough  to  rep- 
resent the  people  in  the  general  assembly,  would  dare 
to  pass.  On  the  other  hand  it  may  make  it  more 
difficult  to  secure  new  and  advisable  legislation.  It 
is  more  than  possible  that  such  a  principle  may  be 
safe  in  municipal  affairs,  though  it  may  be  unsafe  in 
state  government.  Particularly  in  state  government 
the  initiative  and  referendum  is  still  on  probation, 
though  it  is  more  easy  to  secure,  than  to  get  rid  of 
when  once  established. 

as  State    v.     Fleming,     7    Hum-  so  DeChastellux  v.   Falrchild,  15 

phreys,  152.  Pa.  St.   18. 


THE  TRIPLE  SYSTEM   OF   GOVERNMENT  75 

§  95.  Legislative  power  can  not  be  delegated.  Legis- 
lative powers  cannot  be  delegated  from  the  state  legis- 
lature, without  express  constitutional  provision  to  that 
effect.  ''It  is  a  principle  not  questioned,  that  except 
where  authorized  by  the  constitution,  as  in  respect  to 
municipalities,  the  legislature  cannot  delegate  legis- 
lative power — cannot  confer  on  any  body  or  person  the 
power  to  determine  what  shall  be  law.  The  legislature 
only  must  determine  this. " 40  So  we  find  in  Dowling 
v.  Insurance  Co.,41  that  it  was  an  unconstitutional 
act  for  the  legislature  to  leave  to  the  Insurance  Com- 
missioner the  decision  as  to  what  form  of  a  policy  must 
be  used.  So  also  the  supreme  court  of  California 
held 42  that  it  was  illegal  to  leave  to  an  executive  offi- 
cer the  power  to  determine  the  particular  form  of  ap- 
pliance which  should  be  used  in  factories  to  limit  the 
dangers  therein,  making  it  compulsory  upon  the  own- 
ers of  factories  to  comply  with  his  orders.  The  same 
court  in  Ex  parte  Cox 43  ordered  the  discharge  of  the 
petitioner  who  had  been  convicted  of  violation  of  a  cer- 
tain rule  and  regulation  in  the  nature  of  quarantine,  as 
established  by  the  Board  of  State  Agricultural  Com- 
missioners. The  act  establishing  the  commission  de- 
clared it  had  power  to  enforce  rules  and  regulations. 
The  court  said:  "For  the  purpose  of  local  legislation 
legislative  function  may  be  delegated,  but  the  legisla- 
ture had  not  authority  to  confer  upon  the  board  the 
power  of  declaring  what  acts  should  constitute  a  mis- 
demeanor.   The  legislative  power  is  vested  in  the  legis- 


*o  State  v.  Young,  29  Minn.  551.  *-  Schaezlein    v.    Cabaniss,    135 

*i  92  Wis.  63.  Cal.  466. 

43  63   Cal.   21. 


76  PUBLIC   HEALTH   ADMINISTRATION 

lature;  it  cannot  be  attempted  to  confer  that  power 
upon  any  officers  of  the  executive  department. ' ' 44 

§96.  Executive  assumption  of  legislative  power. 
(See  Chap.  IV.)  The  State  Board  of  Health  in  Illinois 
passed  a  regulation  requiring  vaccination  as  a  prelim- 
inary requisite  for  attending  school,  but  the  supreme 
court  held  the  order  void,  as  being  legislation.45  "It 
had,  and  could  have,  no  legislative  power.  Its  duties 
were  purely  ministerial,  and  the  provisions  of  a  statute 
authorizing  the  board  to  make  such  rules  and  regula- 
tions as  it  should  from  time  to  time  deem  necessary 
for  the  preservation  or  improvement  of  the  public 
health,  cannot  be  held  to  confer  that  broad  discretion- 
ary power  contended  for."  And:  "We  are  of  the 
opinion  that  the  powers  of  the  Board  are  limited  to  the 
proper  enforcement  of  the  statutes,  or  provisions  there- 
of, having  reference  to  emergencies  of  government  to 
preserve  the  public  health,  and  prevent  the  spread  of 
contagious,  or  infectious  diseases."  The  court  fur- 
ther said:  "Its  duty  to  recommend  legislation  is  re- 
peated more  than  once  in  the  act  in  connection  with 
specifications  of  the  powers  and  duties  of  the  Board. ' ' 
From  a  legal  point  of  view  the  above  case  covers  the 
entire  field  of  health  work  of  the  state,  and  on  the 
broad  basis  of  reasoning  which  must  appeal  to  all.  The 
supreme  court  of  Wisconsin  gave  a  very  similar  state- 
ment of  the  matter  in  State  v.  Burdge.46 

§  97.  Executive  emergency.  What  then  is  the  emer- 
gency contemplated?  In  Jenkins  v.  Board  of  Educa- 
tion,47 speaking  of  an  order  of  the  Chicago  Commission- 

*■*  See  also  State  v.  Hansen,  63  *5  Potts  v.  Breen,  167  HI.  67. 

Ind.  155;   State  v.  Ball,  34  Ohio,  *«  70    N.    W.    E.    347;    95    Wis. 

194;  East  St.  Louis  v.  Wehrung,  50  390;  37  L.  E.  A.  157. 

HI.  28.  47  234  111.  427. 


THE   TRIPLE   SYSTEM   OF    GOVERNMENT  77 

er  of  Health,  the  court  held :  ' '  There  is  nothing  in  the 
nature  of  an  emergency  in  the  occasional  recurrence  of 
the  well  known  disease  of  small-pox  in  a  city  like 
Chicago,  which  may  not  be  provided  for  by  general 
rules  and  regulations  prescribed  by  the  legislative  au- 
thority of  the  city."  Webster  defines  an  emergency 
as  "a  sudden  or  unexpected  occurrence,  or  combination 
of  occurrences,  demanding  prompt  action."  But  the 
idea  also  presupposes  an  attempt  at  foreseeing,  and 
of  preparing  against,  possible  unfavorable  conditions. 
Sanitarians  would  agree  that  typhoid  fever  and  ma- 
larial fever  are  infectious,  and  that  they  are  dangerous 
to  the  community,  and  legitimate  objects  for  some  form 
of  quarantine.  They  recognize  that  malaria  is  spread 
by  the  anopheles  mosquito,  and  that  the  extermination 
of  those  insects  would  eliminate  that  disease.  They 
recognize  that  typhoid  fever  is  sometimes  spread 
through  the  agency  of  the  common  household  fly,  which 
breeds  in  stable  manure,  wet  straw,  and  garbage.  The 
typhoid  infection  is  often  transported,  and  the  germ 
is  propagated  to  a  dangerous  degree  in  milk.  Public 
sanitarians  know  that  the  bubonic  plague  is  now  upon 
the  Pacific  coast  in  this  country.  It  is  in  Mexico,  and 
along  the  Gulf  of  Mexico.  It  may  at  any  time  attack 
any  of  the  eastern  cities  of  the  United  States.  They 
know  that  the  disease  is  spread  through  the  agency  of 
rat  fleas,  and  the  extermination  of  those  rodents  is  our 
chief,  and  rational  protection.  They  know  that  the 
rats  live  upon  garbage,  and  breed  in  manure  pits,  and 
to  exterminate  the  vermin  we  must  protect  garbage 
and  manure  from  the  rats,  and  so  construct  barns  and 
other  buildings  that  the  vermin  will  find  no  place  for 
hiding.     These  things  are  well  known,  and  there  can 


78  PUBLIC    HEALTH    ADMINISTRATION 

hardly  be  an  emergency  which  would  warrant  a  board 
of  health,  or  a  health  official  in  issuing  mandatory  or- 
ders for  the  abatement  of  these  nuisances,  except  in  ac- 
cordance with  definite  statutes.  Such  orders  would  be 
an  unconstitutional  assumption  of  legislative  power  by 
executive  officers. 

§98.  Executive  assumption  of  judicial  power.  It 
is  not  the  province  of  the  executive  officer  to  determine 
what  is  a  nuisance.  That  is  a  judicial  act.  The  officer 
may  in  each  case  go  into  court  and  prove  a  nuisance, 
and  secure  an  order  for  abatement.  That  is  a  tedious, 
and  expensive,  as  well  as  uncertain  method  of  action. 
The  more  simple  method  is  to  secure  beforehand  the 
enactment  of  a  statute,  which  will  specify  that  certain 
conditions  are  nuisances.  Then  as  an  executive  officer 
it  will  be  his  duty  to  see  that  the  statute  is  obeyed. 

§99.  Executive  duty  to  give  legislature  informa- 
tion. (§  135.)  It  is  the  duty  of  the  executive  officer 
to  so  lay  the  facts  properly  before  the  legislative  bodies 
as  to  secure  needed  enactments.48  If  he  neglects  to  do 
so,  the  responsibility  rests  upon  his  shoulders.  If  the 
facts  are  properly  presented  to  the  legislative  body,  the 
responsibility  will  then  be  transferred  from  the  execu- 
tive, to  the  legislative  authority,  if  disease  and  death 
occur  as  the  result  of  their  negligence.  Freund  thus 
summarizes : 49  ' 'It  cannot  be  left  to  an  administrative 
officer  to  determine  conclusively  the  existence  of  a 
danger,  and  the  choice  of  measures  to  be  taken  against 
it,  since  that  would  involve  an  unconstitutional  delega- 
tion of  legislative  power." 

§  100.  Executive  orders,  law?  It  is  often  claimed 
that  the  orders  of  a  board  of  health,  or  of  a  health  offi- 

«s  Potts  v.  Breen.  167  111.  67.  *»  Police  Power.  See.  34. 


THE   TRIPLE    SYSTEM    OF    GOVERNMENT  79 

cer,  have  the  force  and  effect  of  law.  This  is  an  unfor- 
tunate statement,  which  is  only  partially  true.  A  Fed- 
eral statute  provided  for  the  free  entry  of  animals  to 
be  used  for  breeding  purposes.  The  Secretary  of  the 
Treasury  ruled  that  the  collector  must  be  satisfied  that 
the  animals  were  of  superior  quality.  The  court  held 
that  this  was  additional  legislation,  not  a  regulation.50 
So,  too,  when  the  Postmaster  General  ruled  that  second 
class  matter  should  only  include  such  publications  as 
consisted  of  the  current  news,  or  miscellaneous  litera- 
ture, and  excluded  a  collection  of  railroad  time  tables, 
the  court  held  that  this  was  legislation,  not  regula- 
tion, and  therefore  void.51  In  United  States  v.  Eaton, 
regulations  as  to  manufacture  were  considered  to  have 
gone  beyond  the  statute,  and  therefore  void.52  On  the 
other  hand,  regulations  as  to  branding  and  marking 
were  considered  proper  administrative  regulations,  and 
not  legislation.53  "What  is  allowed  to  be  done  is  any- 
thing within  the  law,  that  is,  in  execution  of  it;  what 
is  forbidden  to  be  done  is  anything  without  the  law, 
that  is,  in  extension  of  it.  In  execution  anything  may 
be  done  that  is  administration,  nothing  may  be  done 
that  is  legislation — is  the  principal  distinction. ' ' 54 
"As  regulations  depend  upon  a  statute,  they  can  never 
go  to  the  extent  of  being  independent  of  the  statute. 
A  regulation  which  is  in  effect  legislation  is  in  a  just 
sense  a  regulation  no  longer.  That  is,  as  a  regulation 
is  derivative,  it  must  keep  within  the  scope  of  the 
statute  under  which  it  is  framed. ' ' 55 

so  Morrill    v.    .Tones,    106    U.    S.  >3  /n  re  Kixilock,  165  U.  S.-  535. 

466.  54  Wyman,   Administrative   Law, 

si  Pub.    Co.    v.   Payne,    30    Was.  See.  99. 

L.  E.  339.  5r,  Wyman,   Administrative   Law, 

52  144  U.  S.  677.     See  also  Mer-  Sec.   133. 
ritt  v.  Welsh,  104  U.  S.  694. 


80  PUBLIC    HEALTH    ADMINISTRATION 

The  New  Jersey  court  distinctly  says :  ' '  The  func- 
tions of  a  board  of  health  are  executive  and  advisory, 
and  not  legislative  or  judicial  in  character,  and  hence 
a  resolution  passed  by  it  declaring  a  certain  tannery 
to  be  a  nuisance  is  void."56  "The  regulations  re- 
quired to  be  passed  by  ordinance  are  such  as  prescribe 
general  rules  with  respect  to  the  several  matters  in- 
trusted to  local  boards,  and  a  particular  permit  au- 
thorizing the  doing  of  that  previously  authorized  by 
ordinance  may  be  granted  by  resolution. ' ' 57  The  Illi- 
nois statute  which  conferred  upon  the  State  Board  of 
Health  the  authority  to  license,  or  refuse  to  license, 
itinerant  venders  of  drugs  was  attacked  on  the  ground 
that  it  conferred  upon  the  board  both  legislative  and 
judicial  duties,  because  it  permitted  the  board  to  make 
the  rules  upon  which  it  would  pass  upon  the  applicants. 
The  court  held  that  the  board  had  under  the  statute 
no  true  legislative  authority,  and  that  it  simply  had 
quasi-judicial  discretion  as  to  the  granting  of  license ; 
and  that  the  rights  of  applicants  was  safeguarded  in 
so  far  that  if  the  board  acted  in  an  arbitrary  manner 
the  action  would  be  subject  to  review  in  the  courts.58 
When  an  incorporated  town  or  city  has  been  invested 
by  the  legislature  with  power  to  pass  an  ordinance 
for  the  government  or  welfare  of  the  municipality,  an 
ordinance  enacted  by  the  legislative  branch  of  the  cor- 
poration in  pursuance  of  the  act  creating  the  corpora- 
tion has  the  force  and  effect  of  a  law  passed  by  the 
legislature,  and  cannot  be  regarded  otherwise  than  as 
a  law,  and  within  the  corporation.59    The  constitution 

Be  Marshall  v.  Caldwalder,  36  N.  ss  People  v.  Wilson,  249  111.  195. 

J.  L.  283.  59  Mason  v.  Shawneetown,  77  111. 

57  Courter  v.  Newark,  25  Vr.  325.      533. 


THE   TRIPLE   SYSTEM    OP    GOVERNMENT  81 

of  Louisiana  authorizes  the  legislature  to  "prescribe 
the  powers"  of  the  board  of  health.  The  court  held 
that  this  can  only  mean  to  delegate  the  powers  neces- 
sary for  efficiently  carrying  out  the  purposes  for  which 
the  board  was  created,  and  to  give  its  regulations  the 
force  of  law.60 

§  101.  Power  yielded  because  claimed  is  not  sanc- 
tioned. Mr.  Cooley  says:61  "A  power  is  frequently 
yielded  to  merely  because  it  is  claimed,  and  it  may  be 
exercised  for  a  long  period  in  violation  of  the  consti- 
tutional prohibition,  without  the  mischief  which  the 
constitution  was  designed  to  guard  against  appearing, 
or  without  any  one  being  sufficiently  interested  in  the 
subject  to  raise  the  question;  but  these  circumstances 
cannot  be  allowed  to  sanction  a  clear  infraction  of  the 
constitution. " 62  "  There  is  always  some  plausible 
reason  for  latitudinarian  constructions  which  are  re- 
sorted to  for  the  purpose  of  acquiring  power;  some 
evil  to  be  avoided,  or  some  good  to  be  attained  by 
pushing  the  powers  of  government  beyond  their  legit- 
imate boundary.  It  is  by  yielding  to  such  influences 
that  constitutions  are  gradually  undermined  and  fin- 
ally overthrown.  *  *  *  If  the  law  does  not  work 
well,  the  people  can  amend  it ;  and  inconveniences  can 
be  borne  long  enough  to  await  that  process. ' ' 63 

§  102.  Executive  orders,  and  regulations,  limitation 
of.  Mr.  Justice  Daniel  has  given  us  a  very  clear  state- 
ment of  the  province  of  the  "  regulation ' '  in  XL  S.  v. 
Eliason : 64    "  The  whole  of  administration  is  governed 

go  State  v.   Snyder,  No.   19,  418  Y.    384;    Greencastle   Township   v. 

Sup.  Ct.  La.  1912.  Black,  51  Ind.  565. 

«i  Constitutional  Limitations,  71.  G3  Bronson,   C.   J.,   in   Oakley   v. 

62  Citing  Sadler  v.  Langhan,  34  Aspinwall,  3  N.  Y.  568. 

Ala.  311;   People  v.  Allen,  42  N.  et  16  Peters,  291. 


82  PUBLIC    HEALTH   ADMINISTRATION 

to  a  greater  or  less  extent  by  fixed  rules.  These  rules 
are  made  by  the  executive  itself  in  the  course  of  ad- 
ministration to  facilitate  the  enforcement  of  the  law. 
In  part  these  rules  are  written,  then  they  are  called 
regulations ;  in  part  they  are  unwritten,  then  they  are 
called  usages.  The  general  result  is  a  definiteness  in 
usual  administration.  The  situation  that  is  found  is 
this :  When  the  law  is  put  upon  the  statute  book  it  is 
not  specific  enough  for  administration.  It  requires 
further  elucidation.  This  is  the  office  of  legislation 
which  is  done  by  the  administration.  That  is,  the  ad- 
ministration first  puts  the  law  in  shape  for  convenient 
administration.  The  force  of  these  regulations  that 
thus  accompany  the  statute  is  the  problem.  The  gen- 
eral conception  is  that  these  regulations  have  the  force 
which  any  governmental  action  has.  This  is  usually 
summed  up  in  the  ordinary  decision  that  these  reg- 
ulations have  the  force  of  law."  But  it  must  be  re- 
membered that  "A  regulation  has  the  force  of  law 
[only]  within  the  sphere  of  its  legal  action."65  In 
other  words,  orders  or  regulations  have  the  effect  of 
law  only  so  far  as  they  remain  within  the  clear  pro- 
visions of  the  constitution  and  the  statutes  under 
which  they  are  framed.  Relying  upon  a  mistaken  con- 
fidence, it  has  often  happened  that  health  officials  have 
issued  as  orders,  or  regulations,  acts  really  of  legis- 
lation. In  the  presence  of  real  danger  under  such 
conditions,  the  efficiency  of  the  health  department  has 
been  paralyzed  by  the  decisions  of  the  courts.  The 
time  for  legislation  is  before  the  danger  approaches, 
and  the  authority  of  legislation  does  not  reside  in  the 

w  Wyman,  Administrative  Law, 
96. 


THE   TRIPLE   SYSTEM    OF    GOVERNMENT  83 

health  officials.     General  rules  and  regulations  have 
not  the  same  standing  as  statutes.66 

"  A  health  officer  who  is  expected  to  accomplish  re- 
sults must  possess  large  powers  and  be  endowed  with 
the  right  to  take  summary  action,  which  at  times  must 
trench  closely  on  despotic  rule.  The  public  health  can- 
not wait  on  the  slow  process  of  a  legislative  body, 
or  on  the  leisurely  deliberation  of  a  court.  Executive 
boards  or  officers  who  can  deal  at  once  with  the  emer- 
gency under  general  principles  laid  down  by  the  law 
making  body  must  exist  if  the  public  health  is  to  be 
preserved  in  cities. "  67  "  Perhaps  some  of  these  stat- 
utes may  be  justified  constitutionally  on  the  ground 
that  the  work  of  the  board  of  health  is  only  a  deter- 
mination of  details  in  the  nature  of  administration, 
which  may  be  by  a  board  appointed  for  that  purpose ; 
and  that  the  substantive  legislation  is  that  part  of  the 
statute  which  prescribes  a  penalty  for  the  disobedience 
of  the  rules  which  they  make  as  agents  performing 
executive  and  administrative  duties. ' ' 6S  Clearly,  when 
a  penalty  is  attached  to  a  violation  of  the  rules  or 
regulations  of  a  board  of  health  such  rules  must  be 
published,  and  due  notice  given,  before  they  can  be 
made  effective.69  Even  here,  the  regulations  must  not 
be  broader  than  the  statute  under  which  they  are 
passed.  Thus,  under  the  general  power  to  inspect  bag- 
gage to  guard  against  the  introduction  of  infectious 
disease,  the  Michigan  board  passed  a  rule  requiring 
all  baggage  inspected,  without  making  it  a  prerequi- 

«e  Health    Dept.    v.    Knoll,     70  es  Brodbine  v.  Revere,  182  Mass. 

N.  Y.  530;  Keed  v.  People,  1  Park  598. 

Cr.  481.  so  Reed  v.  People,  1  Parker  Cr. 

e?  Nowotny    v.    Milwaukee,     121  481 ;    Pierce   v.    Doolittle,    130    la. 

N.  W.  658.  333. 


84  PUBLIC    HEALTH    ADMINISTRATION 

site  that  the  baggage  so  treated  must  be  from  an  in- 
fected district,  and  the  court  declared  the  regulation 
void  as  being  in  excess  of  authority.70 

It  is  true  that  in  some  cases  in  different  states  cer- 
tain legislative  power  has  been  conceded  to  the  health 
departments.  Thus  in  Vermont,71  it  was  held  that 
police  powers  may  lawfully  be  delegated  to  state 
boards  of  health,  and  when  so  delegated  the  agency 
employed  is  clothed  with  power  to  act  as  fully  and 
efficiently  as  the  legislature  itself.  The  same  decision 
also  recognizes  a  similar  power  for  local  boards.  Sim- 
ilarly in  New  York  state  the  court  has  admitted  that 
the  state  may  confer  upon  boards  of  health  the  power 
to  enact  sanitary  ordinances  having  the  force  of  law 
within  the  localities  for  which  they  act.72  These  de- 
cisions do  not  seem,  however,  to  have  the  breadth  of 
meaning  which  some  enthusiasts  would  desire.  They 
may  be  considered  in  the  light  of  other  decisions  by 
the  same  courts  rather  to  recognize  the  necessary 
force  which  must  be  given  for  the  general  welfare  to 
such  legal  orders  as  are  issued  under  the  general  pro- 
visions. Thus  the  Vermont  court  also  said 73  that  the 
state  may  invest  state  and  local  boards  of  health, 
created  for  administrative  purposes,  with  authority  in 
proper  way  to  safeguard  the  public  health  and  the 
public  safety.  The  way  in  which  these  results  are  to 
be  accomplished  is  within  the  discretion  of  the  state, 
provided  the  powers  and  functions  of  the  general  gov- 
ernment are  not  thereby  infringed,  nor  any  constitu- 

70  Hurst  v.   Warner,   102   Mich.  Y.  631;  Polinsky  v.  People,  73  N. 

238.  Y.  65. 

7i  State  v.  Morse,  80  Atl.  189.  73  state  Board  of  Health  v.  St. 

'  72Cartwright  v.  Cohoes,   165  N.  Johnsbury,  73  Atl.  581. 


THE   TRIPLE    SYSTEM    OF    GOVERNMENT  85 

tional  provision  of  the  state  or  the  United  States. 
"If  the  mode  adopted  by  the  state  for  the  protection 
of  the  public  health  and  safety  of  its  local  communi- 
ties proves  objectionable,  inconvenient,  or  even  dis- 
tressing to  some,  if  nothing  more  can  reasonably  be 
affirmed  against  the  statutes,  the  answer  is  that  it  is 
the  duty  of  the  constituted  authorities  primarily  to  keep 
in  view  the  welfare  and  safety  of  the  many,  and  not  to 
permit  their  interests  to  be  subordinated  to  the  wishes 
or  the  convenience  of  the  few."  Since  this  case  was 
heard  not  long  before  the  Morse  case,  the  last  men- 
tioned must  be  read  in  the  light  of  the  former,  which 
distinctly  recognizes  that  neither  the  constitution,  nor 
the  authority  of  the  central  government  are  to  be 
infringed  upon.  Even  were  it  possible  under  our  sys- 
tem to  thus  delegate  legislative  authority  to  health 
departments,  it  would  be  inadvisable  for  the  reason 
that  it  would  necessarily  bring  confusion.  There  must 
be  one  governmental  body  in  control. 

The  possible  conflict  between  the  ordinary  legislative 
authority  and  that  of  a  health  department  is  shown  in 
a  case  originating  in  South  Carolina.  Sections  1451 
and  1463  of  the  Civil  Code  of  1912  confer  ample  au- 
thority on  boards  of  health  to  make  and  enforce  all 
needful  rules  and  regulations  to  prevent  the  introduc- 
tion and  spread  of  infectious  or  contagious  diseases, 
and  generally  to  make  all  such  regulations  as  they  shall 
deem  necessary  for  the  preservation  of  the  public 
health,  and  to  define,  declare,  and  abate  nuisances  in- 
jurious to  the  public  health.  Acting  under  these  pro- 
visions the  board  of  health  of  the  city  of  Charleston 
passed  a  resolution  requiring  the  closing  of  all  dairies 
in  the  city  on  or  before  July  1,  1912.    The  city  council 


86  PUBLIC   HEALTH   ADMINISTRATION 

regularly  passed  a  resolution  antagonistic  to  the  action 
of  the  board  of  health,  and  practically  nullifying  the 
resolution  of  the  board  of  health.  The  question  was 
therefore  directly  raised  as  to  the  relative  powers  of 
the  two  bodies.  In  Alston  v.  Ball 74  the  supreme  court 
passed  upon  the  matter,  holding  that  as  these  powers 
are  conferred  upon  the  boards  of  health  to  control 
sanitary  matters  by  rules,  regulations,  and  resolutions, 
the  said  board  of  health  had  full  authority  in  the 
matter.  It  is  not  to  be  presumed  that  they  act  arbi- 
trarily or  capriciously,  and  so  long  as  they  are  reason- 
able in  the  discharge  of  their  discretionary  duties,  the 
court  is  without  power  to  interfere.  "Within  the 
limits  of  their  power  they  are  exclusive  judges  of  the 
propriety  and  wisdom  of  their  actions,  and  so  long 
as  they  act  strictly  within  those  limits  and  not  arbi- 
trarily or  capriciously,  they  are  not  subject  to  the 
control  of  the  court.  In  other  words,  the  court  can- 
not set  its  judgment  against  theirs,  for  that  would 
be  to  usurp  their  power.  Under  the  showing  made 
it  could  not  have  been  said  that  the  action  of  the 
board  in  this  case  was  arbitrary  or  capricious,  or  that 
it  had  no  substantial  or  reasonable  relation  to  the 
purpose  for  which  it  was  intended,  namely,  the  pro- 
tection and  preservation  of  the  public  health.  On  the 
contrary,  the  overwhelming  weight  of  the  evidence 
was  that  it  was  not  only  desirable  but  necessary  to  that 
purpose. ' '  Inasmuch  as  the  board  of  health  derived  its 
authority  directly  from  the  legislature  and  not  from 
any  municipal  action,  the  board  of  health  was  not  sub- 
ject to  the  council.  Each  derived  its  authority  from  the 
same  source.     Apparently,  therefore,  in  every  place 

74  77  S.  E.  R.  727. 


THE  TRIPLE   SYSTEM   OF   GOVERNMENT  87 

where  there  is  a  conflict  between  the  ordinary  legisla- 
tive body  for  the  city  and  the  board  of  health,  it  will 
be  necessary  to  take  the  question  to  the  supreme  court 
to  decide  how  much  may  be  a  matter  of  sanitation, 
and  how  far  questions  other  than  those  relative  to 
health  may  be  involved.  Such  conflict  in  authority 
is  entirely  obviated  by  holding  strictly  to  the  rule  that 
legislative  authority  may  not  be  delegated;  and,  fur- 
ther, insisting  that  there  shall  be  but  one  legislative 
body  for  each  prescribed  territory. 

§103.  Legislative  limitations.  Even  legislatures 
have  no  unlimited  power  of  legislation,  within  con- 
stitutional limitations  as  to  substance.  Legislation 
must  be  reasonable,  and  not  arbitrary.  The  Fifth 
Amendment  to  the  Federal  Constitution  provides  that 
no  person  shall  "be  deprived  of  life,  liberty,  or  prop- 
erty, without  due  process  of  law;  nor  shall  private 
property  be  taken  for  public  use,  without  just  com- 
pensation. ' '  The  Fourteenth  Amendment  says : 75  ' '  No 
state  shall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the  United 
States;  nor  shall  any  state  deprive  any  person  of  life, 
liberty,  or  property,  without  due  process  of  law. ' ' 

§  104.  Due  process  of  law.  It  will  be  noticed  that 
these  two  provisions  of  the  Federal  Constitution  sim- 
ilarly protect  property.  In  the  judicial  interpretations 
the  Fifth  Amendment  is  understood  as  restraining  the 
Federal  Government,  not  the  individual  states,  whereas 
the  Fourteenth  Amendment  is  clearly  a  restraint  upon 
the  individual  states.  The  fuller  discussion  of  the 
meaning  of  the  phrase  "Due  process  of  law"  will  be 
found  in  a  subsequent  chapter.     (Chap.  VII.)     It  is 

75  Section  1. 


88  PUBLIC   HEALTH   ADMINISTRATION 

sufficient  to  state  here  that  the  expression  does  not 
necessarily  refer  to  judicial  decisions  in  court,  but  a 
person  may  be  deprived  of  liberty  or  property  by  legis- 
lative action,  or  by  the  act  of  the  executive,  and  such 
deprivation  may  still,  within  the  intent  of  the  constitu- 
tional amendment,  be  due  process  of  law.  The  most 
vital  point  in  due  process  is  that  the  individual  shall 
have  an  opportunity  to  be  heard  formally.  This  oppor- 
tunity may  be  through  his  legislator.  If  the  law  tends 
to  act  unjustly  he  may  then  get  his  hearing  in  court. 
He  may  have  his  opportunity  for  objection  before  the 
executive  charged  with  the  enforcement  of  the  statute. 
Even  summary  action  by  the  executive  may  be  held  as 
within  due  process  under  certain  conditions,  and  then 
the  aggrieved  person  may  have  the  act  reviewed  in 
court. 

§  105.  Public  health  protection,  police  power.  The 
foundation  for  all  of  the  protective  operations  of  gov- 
ernment is  in  that  peculiar  and  wide  reaching  power 
called  Police.  (See  Chapter  VI.)  Its  maxim  is  "Solus 
populi  est  supremo  lex/'  Its  object  is  to  prevent,  not 
to  punish,  crimes  and  misfortunes.  It  is  not  a  power 
granted  to  any  governmental  body.  It  is  an  inherent 
function  of  government,  without  which  no  government 
could  endure.  Upon  this  power  the  government  de- 
pends for  its  very  life.  The  extreme  strength  of  the 
power  renders  its  abuse  the  more  dangerous,  and  be- 
cause every  act  of  a  health  department  must  be  finally 
justified  under  this  power,  it  is  the  more  needful  that 
its  limitations  be  strictly  observed  by  the  adminis- 
trator. On  the  other  hand,  because  of  the  strength  of 
this  power  actions  of  governmental  officers  under  it 
are  especially  liable  to  restrictive  investigations.    In 


THE   TRIPLE   SYSTEM    OF    GOVERNMENT  89 

other  words,  if  the  officer  is  disposed  to  go  to  the  limit 
of  his  power,  basing  his  efforts  upon  that  which  he 
may  consider  his  duty  and  privilege,  the  individual 
citizens  are  very  likely  to  rebel,  and  take  the  questions 
into  court.  For  these  reasons  the  subject  of  Police 
Power  will  be  more  fully  treated  in  a  subsequent  chap- 
ter. 

§  106.  Public  health  activities  based  upon  idea  of 
"nuisance."  The  protection  of  the  life  and  health  of 
the  individual  citizen  is  a  most  important  portion  of 
police  power.  Protection  does  not  mean  the  cure  of 
illness,  unless  the  cure  of  one  case  may  have  a  restrain- 
ing action  upon  the  spread  of  the  malady;  or  possibly 
if  it  be  necessary  for  the  state  to  step  in  and  prevent 
the  continuance  of  the  illness.  Prevention  presup- 
poses a  cause  which  is  to  be  removed  or  controlled, 
and  that  cause  must  be  some  thing  or  condition  which 
has  an  injurious  effect  upon  the  health  (or  morals) 
of  the  individual  citizen.  Such  a  thing  or  condition 
is  called  a  nuisance.  (Chap.  VIII.)  Thus  we  find  that 
"In  the  United  States  also  the  police  of  public  health 
and  safety  starts  from  the  idea  of  nuisance.  It  is 
further  based  upon  the  principle  that  there  is  to  be  a 
legislative  determination  in  great  detail  as  to  what  are 
nuisances.  There  is  not  in  this  country  any  elaborate 
statute  on  the  subject,  and  in  those  states  where 
special  legislation  is  permitted  by  the  constitution, 
much  of  the  legislation  is  contained  in  statutes  which 
affect  only  one  city. ' ' 76 

§  107.  Lack  of  legislation,  a  source  of  executive 
weakness.     The   difficulty   of   determining  what   are 

™  Goodnow,    Municipal    Govern- 
ment, p.  271. 


90  PUBLIC   HEALTH   ADMINISTRATION 

nuisances  and  what  are  not  is  very  greatly  increased 
by  the  lack  of  systematic  compilations  of  approved 
facts  or  opinions  in  our  statute  books.  The  question 
of  jurisdiction  between  municipality,  state,  and  nation, 
together  with  the  multitude  of  enactments  which  may 
often  conflict,  the  lack  of  clearness  and  definiteness 
in  statutes  enacted,  all  conspire  to  make  the  subject 
like  a  promiscuous  pile  from  which  the  desired  article 
may  be  sometimes  taken  easily,  and  at  others  it  is  most 
difficult  to  find,  and  its  extraction  is  hindered  by  other 
articles.  Without  definiteness  of  statutory  enactment, 
the  health  official  must  "feel"  his  way.  (§  163.)  He  is 
on  uncertain  ground.  Even  long  established  custom 
does  not  ensure  his  safety.  The  custom  may  never 
have  been  questioned,  but  it  may  only  need  to  be 
brought  into  court  to  be  condemned.  The  officer  may 
at  any  time  be  blocked,  and  the  block  may  come  when 
it  is  most  unfortunate  and  crippling.  In  legislation 
every  citizen  finds  abundant  opportunity  for  objection. 
If  he  does  not  have  this  opportunity  in  this  manner, 
he  is  more  likely  to  oppose  an  executive  order.  Oppo- 
sition to  the  executive  order  may  cause  expensive 
delay — expensive  both  in  time  and  money. 

§  108.  Legislation  more  needful  in  decentralized  gov- 
ernment. Because  of  the  right  of  eveiy  citizen  to  be 
heard,  and  because  the  primary  authority  here  rests 
with  the  individual  citizen,  exactness  and  definiteness 
of  legislative  determination  by  statutory  enactment 
is  far  more  necessary  in  a  decentralized  government 
like  ours,  than  it  could  possibly  be  in  a  centralized 
system  like  those  of  Europe.  In  England  the  super- 
vision of  all  public  health  activities  is  under  the  one 
Local  Government  Board.    Such  a  body  has  far  more 


THE   TRIPLE   SYSTEM    OF    GOVERNMENT  91 

authority  than  any  similar  body  in  this  country.  It 
could  give  definiteness  to  efforts  which  would  be 
blocked  by  uncertainty  here. 

§  109.  Legislation  definite  in  effect.  We  hear  much 
of  the  uncertainty  of  the  law,  and  the  delays  of  the 
law.  So  far  as  public  health  work  is  concerned  it  is 
probable  that  very  much  of  the  basis  of  such  com- 
plaints is  to  be  found  in  the  absence  of  legislation. 
Every  man  has  his  right  to  his  day  in  court.  An 
executive  order  may  be  opposed  by  the  citizen.  The 
case  is  of  minor  importance,  apparently,  and  it  is  not 
carried  to  the  higher  courts.  Consequently  the  same 
questions  may  be  repeatedly  tried,  and  settled  for 
individual  cases.  Were  the  question  one  based  upon 
the  intent  of  a  statute  it  could  not  be  settled  until  it 
reached  the  higher  court,  and  practically  the  one  case 
would  cover  all.  Lack  of  legislation  then  increases 
the  work  of  the  courts,  and  cumbers  their  dockets  with 
useless  and  time-taking  cases.  Because  of  the  multi- 
tude of  such  cases  the  courts  do  often  of  necessity 
occupy  much  time. 

With  the  absence  of  legislation  upon  which  to  base 
conclusions,  when  each  case  is  brought  into  court  it 
must  go  through  every  phase  of  investigation,  be 
viewed  from  every  angle.  Each  case  must  be  settled 
by  itself,  and  the  ground  previously  traversed  must  be 
retraced  as  if  it  had  never  been  trod.  Much  depends 
upon  the  way  in  which  the  case  may  be  presented  to 
the  court  by  each  side.  Under  such  circumstances  no 
wonder  that  the  officer  who  seeks  to  do  his  work  with 
executive  regulations  and  orders  chafes  under'  the 
uncertainties  and  delays  of  the  law.  All  of  this  could 
be  prevented  by  convincing  the  legislative  body  of  the 


92  PUBLIC   HEALTH   ADMINISTRATION 

need  for  legislation,  and  then  by  judiciously  guiding 
the  enactment. 

§110.  Agreement  of  three  branches  necessary.  Even 
after  the  legislature  has  passed  a  statute  its  terms 
may  be  questioned  in  the  court.  It  must  there  appear 
that  the  statute  is  reasonable  for  the  accomplishment 
of  the  object  intended.  It  must  not  be  an  arbitrary 
use  of  power.  "Practically  the  present  system  of 
judicial  control  over  legislation  has  meant  in  many 
cases  that  unless  all  three  departments  of  govern- 
ment are  convinced  of  the  justice  and  reasonableness 
of  a  radical  change  in  social  or  economic  policy  it 
cannot  become  embodied  in  principles  of  law."77 
Executive  irritation  often  springs  from  a  misunder- 
standing, or  a  lack  of  appreciation  of  these  funda- 
mental principles  of  our  governmental  system.  Exec- 
utives have  tried  to  ignore  the  necessity  for  the  aid 
of  other  branches,  and  finding  themselves  thwarted  in 
their  efforts,  they  have  mistaken  law  for  obstruction. 
All  things  should  be  done  decently  and  in  order,  and 
this  means  in  accordance  with  the  fundamental  plans 
of  our  system  of  government. 

§  111.  Executive  semi-legislative  duties.  Although 
the  legislative  branch  is,  and  must  be  distinct  from 
the  executive,  there  are  important  semi-legislative 
duties  which  naturally  devolve  upon  such  a  technical 
executive  as  a  public  health  official.  Not  only  must  he 
call  attention  to  the  need  for  legislation,  but  because 
the  subject  dealt  with  is  highly  technical,  and  because 
the  legislators  as  a  class  are  not  educated  in  these 
technicalities,  it  becomes  a  most  important  duty  to 
wisely  guide  the  form  of  legislation.    This  guidance 

"  Fremiti,  Police  Power,  Sec.  21. 


THE   TRIPLE   SYSTEM   OF    GOVERNMENT  93 

must  be  through  publications,  and  especially  by  the 
concise  and  patient  work  with  committees.  This  duty 
is  perhaps  the  most  difficult,  and  the  most  important 
which  may  devolve  upon  the  head  of  a  state  depart- 
ment of  health.  It  requires  a  broad  acquaintance  with 
the  science,  a  clear  appreciation  of  the  legal  points 
involved,  combined  with  the  ability  to  use  logic  and 
diplomacy  effectively. 

§  112.  Illegal  statutes.  The  fact  that  a  statute  may 
be  found  upon  the  pages  of  the  statute  book  is  not 
conclusive  evidence  that  it  is  law.  (§64.)  Presumably 
a  statute  is  sound  law  after  it  has  passed,  until  such 
time  as  it  may  be  tested  and  nullified  by  the  court. 
Unfortunately  the  adverse  decision  of  the  court  does 
not  remove  the  law  from  the  statute  books,  and  in 
the  compiled  statutes  of  the  state  the  nullified  act  may 
remain  until  someone  takes  the  trouble  to  have  it 
repealed.  The  repeal  of  an  act  takes  it  from  the  book. 
An  act  may  be  practically  nullified  by  the  court  in  a 
collateral  case.  Thus,  the  state  of  Missouri  enacted  a 
statute  intended  to  prevent  the  importation  of  the 
Texas  cattle  fever  into  the  state.  This  statute  was 
declared  unconsitutional  by  the  Supreme  Court  of  the 
United  States.78  In  Illinois  a  similar  statute  was 
enacted,  approved  in  1867.79  Since  the  two  statutes 
were  "on  all  fours"  as  to  the  specific  points  discussed 
in  the  Missouri  case,  practically  that  decision  nullified 
the  Illinois  act,  even  though  the  Illinois  act  be  not 
mentioned.  This  latter  act  should  have  been  repealed, 
but  it  has  remained  all  these  years  dead  wood  to  choke 
the  vital  growth  of  the  legal  administration.     Simi- 

78  H.  &  St.  J.  R.  R.  Co.  v.  Husen,  10  Revised       Statutes,       Illinois, 

5  Otto,  465.  Chap.  8,  Sec.  29-40. 


94  PUBLIC   HEALTH  ADMINISTRATION 

larly,  there  are  statutes  which  are  nullified  by  the 
advances  of  science,  and  this  same  Illinois  statute 
mentioned  is  an  illustration.  Generally  speaking, 
there  is  no  state  officer  whose  duty  it  is  to  see  that  such 
dead  material  is  pruned  from  the  living  law.  A  dead 
statute  is  simply  disregarded.  Every  such  dead 
statute  tends  to  beget  a  general  disrespect  for  law,  and 
thus  to  make  "a  dead  letter"  of  other  statutes.  Not 
only  so,  but  the  fact  that  the  statute  books  are  cumbered 
with  this  dead  material  tends  to  hide  important  acts 
from  public  knowledge. 

§  113.  Crazy-quilt  legislation.  Another  very  great 
fault  in  our  present  system  of  enactments,  and  one 
which  is  intensified  by  our  popular  form  of  govern- 
ment, is  that  enactments  are  made  piecemeal,  and 
without  any  organic  plan.  The  dignity  and  import- 
ance of  our  legislatures  have  been  lowered  until  they 
have  lost  much  of  their  former  position,  and  acts  are 
passed  during  the  closing  hours  of  a  prolonged  ses- 
sion, in  which  months  have  perhaps  been  spent  in  dick- 
erings  and  jockeyings,  which  could  be  of  no  public 
benefit.  Each  act  has  been  considered  by  itself,  with- 
out reference  to  cognate  subjects.  The  result  has 
been  that  statutes  may  seriously  conflict.  Added  to 
this  fact,  and  partially  resulting  from  it,  in  broadening 
the  work  of  a  special  department  the  tendency  has 
been,  not  to  systematize  the  organization,  but  to  add 
more  independent  offices.  Multiplicity  of  offices,  divid- 
ing responsibility,  necessitates  inefficiency  and  extrava- 
gance of  administration. 

§114.  Executive  duty  to  systematize  enacted  stat- 
utes. No  one  should  be  better  able  than  the  executive 
to  clearly  see  and  appreciate  these  facts.    He  should 


THE   TRIPLE    SYSTEM    OF    GOVERNMENT  95 

constantly  keep  the  legislative  body  informed  as  to 
dead  statutes,  that  they  may  be  repealed.  Every  act 
should  be  carefully  studied  with  reference  to  other 
statutes,  and  for  possible  legal  objections.  The  legis- 
lative responsibility  rests  with  the  legislature,  but  the 
executive  must  bear  the  blame  if  legislation  is  based 
upon  misinformation.  This  guidance  of  legislation 
according  to  some  definite  plan,  is  the  most  important 
and  helpful  work  possible  to  the  chief  administrator 
of  a  state  department  of  health,  by  whatever  title 
he  may  be  called. 

§  115.  Limitation  and  distinction.  This  duty  of  the 
executive  just  mentioned  has  very  definite  limitations. 
The  executive  has  no  legislative  power  nor  authority. 
He  must  not  attempt  to  coerce,  for  that  is  a  use  of 
power  over  legislation.  One  man  may  lead  a  horse  to 
water,  but  ten  cannot  make  him  drink.  The  duty  of 
the  executive  ends  with  giving  the  information. 
If  he  cannot  convince  the  legislators  as  to  the  need  for 
certain  legislation  he  may  properly  appeal  to  the  peo- 
ple, but  he  has  no  moral  nor  legal  right  otherwise  to 
attempt  to  force  legislation. 


CHAPTEB  IV 


THE  EXECUTIVE — OEGANIZATION 


§116. 
§117. 
§118. 
§119. 
§  120. 


§121. 

§122. 
§123. 
§124. 

§125. 

§126. 


National   executive. 

State  executive. 

Oneness  of  executive. 

Boards  of  health. 

Subjection  of  the  trained 
specialist  to  the  untrained 
official. 

Organization. 

Individual   responsibility. 

Principles    in    organization. 

Appointment  by  the  Gov- 
ernor. 

Power  to  appoint  not  in- 
herent. 

Eestrictions  in  appointment. 


§  127.  Power  of  removal. 

§  128.  One  man  in  charge  of  each 
department. 

§  129.  Experts  paid  by  salary. 

§  130.  Paid  by  salary,  not  by  fees. 

§  131.  Responsibility  must  be  tan- 
gible. 

§  132.  Organization  of  State  De- 
partment of  Health. 

§  133.  Excess  of  power. 

§  134.  Appeal  in  department. 

§  135.  Duty  of  executive  to  advise 
legislation. 

§  136.  Summary. 


§  116.  National  executive.  The  second  branch  of 
governmental  action  is  the  Executive.  In  the  national 
system,  the  head  of  the  executive  department  is  the 
President,  and  under  the  general  term  there  are  also 
included  the  members  of  the  Cabinet,  and  all  those 
officers  and  employees  who  are  engaged  in  the  admin- 
istration of  governmental  affairs  of  the  nation.  The 
ramifications  of  the  executive  are  to  be  found  even 
on  the  country  roads  where  the  rural  mail  carrier 
may  be  seen  making  his  occasional  trips ;  in  the  forests 
of  the  west,  where  the  forest  reserve  employees  are  pro- 
tecting the  trees  from  the  ravages  of  fire  and  insects; 
in  the  dark  mines  of  the  land,  where  the  mineral 
experts  are  making  their  investigations;  in  foreign 

96 


THE   EXECUTIVE ORGANIZATION  97 

countries,  where  the  consular  agents  collect  commercial 
data,  and  protect  American  interests;  as  well  as  in 
those  hives  of  administration  which  are  housed  in  the 
great  buildings  of  the  national  capitol.  For  reasons 
which  will  appear  in  a  subsequent  chapter,  attention 
will  not  here  be  given  to  national  executive  administra- 
tion, further  than  as  illustrating  the  application  of  the 
law. 

§  117.  State  executive.  From  a  public  health  stand- 
point the  state  executive  is  the  centre  of  interest.  The 
very  great  importance  of  the  subject  justifies  a  some- 
what critical  consideration,  not  only  of  the  existing 
conditions,  but  of  what  we  should  have. 

Business  ability  and  acumen  are  the  pride  and  boast 
of  Americans  generally.  That  there  is  a  legitimate 
basis  for  such  pride  may  be  seen  by  a  glance  at  the 
great  commercial  and  engineering  undertakings  which 
have  been  carried  through,  not  only  in  the  United 
States,  but  also  in  far  distant  lands.  We  have  also 
the  direct  testimony  of  foreign  writers.  The  eminent 
English  statesman,  Sir  James  Bryce,  in  the  first  edi- 
tion of  his  ' '  American  Commonwealth ' '  wrote :  *  "  The 
Americans  are,  to  use  their  favorite  expression,  a 
highly  executive  people,  with  a  greater  ingenuity  in 
inventing  means,  and  a  greater  promptitude  in  adapt- 
ing means  to  an  end,  than  any  European  race. 
Nowhere  are  large  undertakings  organized  so  skill- 
fully; nowhere  is  there  so  much  order  with  so  little 
complexity;  nowhere  such  quickness  in  correcting  a 
suddenly  discovered  defect,  in  supplying  a  suddenly 
arisen  demand.' ' 

On  the  other  hand,  and  in  marked  contrast  with  the 

*  Vol.  II,  p.  44. 


98  PUBLIC    HEALTH    ADMINISTRATION 

author  just  quoted,  though  not  in  the  least  contradict- 
ing his  assertion,  another  English  writer,  Mr.  Percy 
Ashley,  says  of  the  American  state  governmental 
system : 2  "  The  state  executives  are  ill  organized  and 
weak."  This  is  not  the  statement  of  a  hypercritical 
faultfinder.  It  is  simply  an  epitome  of  the  conclu- 
sions of  every  student  of  American  administrational 
machinery.  No  one  can  successfully  controvert  Pro- 
fessor Goodnow  when  he  says:3  "The  experience  of 
the  world  is  against  the  administrative  arrangements 
of  the  states  of  the  American  Union." 

§  118.  Oneness  of  executive.  A  prime  essential  for 
executive  efficiency  is  found  in  the  idea  of  oneness.  It 
is  true  that  for  over  six  hundred  years  the  executive 
powers  of  Switzerland  have  been  reposed  in  a  council; 
but  there  is  no  such  separation  of  powers  in  Switzer- 
land as  in  this  country,  and  that  federation  is  not  a 
nation  in  the  same  sense  as  is  the  United  States.  At 
the  founding  of  this  country  there  were  those  who 
feared  to  trust  the  executive  power  of  the  nation  to  one 
man,  and  at  first  several  states  voted  against  the  prop- 
osition. ' '  The  Federalist ' ' 4  contains  a  full  discussion 
of  this  point,  and  Chief  Justice  Story  has  given  the 
subject  a  somewhat  lengthy  discussion  in  his  com- 
mentary on  the  Constitution.  What  is  there  said 
applies  with  equal  force  to  the  government  of  the  indi- 
vidual states,  and  also  to  the  portion  of  the  state 
administration  which  pertains  to  the  care  of  the  public 
health. 

"That  unity  is  conducive  to  energy  will  scarcely 

2  Local  and  Central  Government,  4  Number   70. 

p.  327. 

a  Principles     of     Administrative 
Law,  p.  133. 


THE   EXECUTIVE — ORGANIZATION  99 

be  disputed.  Decision,  activity,  secrecy,  and  despatch 
will  generally  characterize  the  proceedings  of  one  man 
in  a  much  more  eminent  degree  than  the  proceedings 
of  a  greater  number;  and  in  proportion  as  the  number 
is  increased,  these  qualities  will  be  diminished. ' ' 5  Mr. 
Cushing6  feared  that  this  unity  might  result  in  des- 
potism, but  with  our  division  of  powers  and  conse- 
quent restraints  upon  the  executive,  this  is  hardly  pos- 
sible. To  result  in  despotism,  the  executive  must  be 
united  with  either  the  legislative,  or  the  judicial 
branch.  Because  responsibility  is  more  easily  fixed 
with  one  executive,  than  with  a  board,  he  is  more 
easily  restrained  from  abuse  of  power,  as  Delolme  has 
pointed  out.  "This  unity  may  be  destroyed  in  two 
ways:  First,  by  vesting  the  power  in  two  or  more 
magistrates  of  equal  dignity;  secondly,  by  vesting  it 
ostensibly  in  one  man,  subject  however,  in  whole  or  in 
part,  to  the  control  and  advice  of  the  council. ' ' 7  Either 
of  these  methods  is  fatal  to  individual  responsibility. 
They  shield  the  incompetent  or  shrewdly  unscrupulous 
officer,  and  hinder  the  trained  and  competent  man. 

Although  discussions  are  beneficial  in  legislation, 
after  a  law  has  been  enacted  there  is  no  longer  occasion 
for  discussion.  It  is  only  the  duty  of  the  executive 
to  administer  the  law  as  enacted.  "No  favorable  cir- 
cumstances paliate  or  atone  for  the  disadvantages  of 
dissension  in  the  executive  department.  The  evils  here 
are  pure  and  unmixed.  They  embarrass  and  weaken 
every  plan  to  which  they  relate,  from  the  first  step  to 
the  final  conclusion.    They  constantly  counteract  the 

s  Story,     On     the     Constitution,  i  Story,  On  the  Constitution,  Sec. 

1420.  1421. 

•  7  Opin.  Attorneys  General  453, 
470;  also  2  Opin.  Attys.  Gen.  482. 


100  PUBLIC   HEALTH   ADMINISTRATION 

most  important  ingredients  in  the  executive  character 
— vigor,  expedition,  and  certainty  of  action."8  "But 
the  multiplication  of  voices  in  the  business  of  the 
executive  renders  it  difficult  to  fix  the  responsibility 
of  either  kind ;  for  it  is  perpetually  shifted  from  one  to 
another.  It  often  becomes  impossible,  amidst  mutual 
accusations,  to  determine  upon  whom  the  blame  ought 
to  rest."9  The  magistrate  sinks  into  comparative 
insignificance — compelled  to  follow  when  he  should 
lead — blamed  for  acts  over  which  he  has  no  control. 
§  119.  Boards  of  health.  Mr.  Justice  Miller  tells  us 
that : 10  '  *  The  nearer  we  approach  to  individual  respon- 
sibility in  the  executive,  the  nearer  will  it  come  to  per- 
fection, ' '  and  Professor  Goodnow  assures  us  that : u 
"the  desirability  of  singleheaded  departments  has 
come  to  be  regarded  as  unquestionable,  and  it  is  almost 
heretical  at  the  present  time  to  express  the  conviction 
that  the  board  form  is  preferable."  In  spite  of  this 
it  is  the  rule  in  the  various  states  to  entrust  the  man- 
agement of  the  health  administration  to  boards  of 
health,  often  unpaid.  Pennsylvania  has  a  department 
of  health  headed  by  a  commissioner,  and  though  less 
perfectly  organized,  New  York  has  a  similar  depart- 
ment. Mr.  Eaton,  in  his  Government  of  Municipali- 
ties,12 gives  a  somewhat  lengthy  argument  to  show  that 
health  administration  should  be  in  the  hands  of  a  board 
of  health.  He  argues  that  where  the  work  is  done  by 
one  man  there  is  too  great  an  opportunity  for  oppres- 
sion and  partiality  in  administration,  and  that  there 
is  need  for  multiplicity  of  council  to  obtain  the  best 

s  Story,  Cons.  1424.  u  Municipal  Government,  p.  225. 

»  Story,  Cons.  1425.  12  p.  407. 

i°  Constitution,  p.  94. 


THE   EXECUTIVE — ORGANIZATION  101 

result  in  formulating  regulations  and  ordinances.  On 
the  contrary,  to  get  the  advantage  of  numbers  in  a 
board  it  must  have  some-  degree  of  legislative  power. 
True  it  can  have  no  true  legislative  authority,  but  it 
must  have  authority  to  enact  ordinances.  The  rules, 
regulations,  and  ordinances  passed  by  the  board  do  not 
of  themselves  set  any  bar  against  the  abuse  of  power  in 
the  executive  work.  On  the  other  hand,  the  more 
boards  are  allowed  legislative  authority,  in  either  state 
or  city  government,  the  less  prominent  will  the  delib- 
erations of  each  become.  In  another  portion  of  his 
work,  Mr.  Eaton  says:13  "In  most  American  cities 
the  ordinance  making  power  is  distributed  between 
limited  councils,  boards,  and  single  officers.  Much  con- 
flict, confusion,  and  needless  litigation  are  the  inevit- 
able result,  as  there  would  be  concerning  the  laws  if 
there  were  several  law-making  bodies  in  the  same 
state."  This  is  sufficient  to  condemn  the  suggestion 
that  an  administrative  body  should  be  a  "board"  in 
order  to  get  the  advantage  of  multiplicity  of  ideas, 
and  division  of  responsibility. 

Since  boards  of  health  are  purely  the  creatures  of 
enactment,  when  they  exist  their  composition  and 
operations  must  be  controlled  by  the  law  which  pro- 
vides for  their  existence.  Thus,  a  provision  of  law 
authorizing  a  board  of  health  to  employ  such  persons 
as  shall  be  necessary  to  enable  it  to  carry  into  effect 
its  orders  and  regulations  does  not  authorize  a  village 
board  of  health  to  employ  regularly  an  attorney  and 
counselor.14     States   have   attorneys   general,    whose 

is  p.  262. 

i*  Reynolds  v.  Ossining,  92  N.  Y. 
Supp.  954. 


102  PUBLIC   HEALTH   ADMINISTRATION 

duty  it  is  to  represent  the  state,  or  state  officers,  in  all 
cases.  State  boards  of  health  are  state  officers,  so  that 
it  is  the  duty  of  attorneys  general  (as  well  as  the  assist- 
ants which  are  called  by  various  names  in  different  com- 
monwealths, such  as  state's  attorneys,  county  attorneys, 
prosecuting  attorneys,  etc.),  to  represent  the  board, 
and  to  give  it  counsel  and  advice.15  Likewise  in  cities 
and  villages  there  are  ordinarily  local  attorneys  for  the 
corporations  who  are  supposed  to  look  after  the  affairs 
of  the  corporation.  Unless  there  may  be  a  distinct  pro- 
vision in  the  statute,  therefore,  permitting  or  direct- 
ing such  employment  of  a  special  attorney  the  employ- 
ment would  not  be  justified  in  law.  Because  such  a 
special  attorney  would  not  be  under  the  control  of  the 
legal  department  of  the  city  or  state,  there  might  very 
easily  arise  conflicts  as  to  authority  which  would  com- 
plicate administration.  As  a  general  proposition,  then, 
such  special  employment  of  attorneys  by  boards  of 
health  would  be  contrary  to  policy,  as  well  as  contrary 
to  law. 

By  the  constitutions  of  some  states  it  is  illegal  to 
appropriate  money,  or  fix  a  salary,  in  a  general  act 
embracing  other  matters.  Such  a  provision  in  an  act 
creating  a  state  board  of  health  would  therefore  be 
void,  but  making  that  item  void  does  not  render  void 
the  entire  statute.16  A  board  of  health  will  be  con- 
sidered legally  organized  if  there  be  a  substantial  com- 
pliance with  the  requirements  of  the  law.17 

General  laws  relating  to  boards  of  health  apply  to  all 
boards  of  health  in  existence,  with  the  exception  only 

is  Reports,      Attorney     General,  v.  Walker,  106  N.  W.  427. 
111.  1902,  p.  391,  and  1910,  p.  305.  "  Trenton  v.  Hutchinson,  39  N. 

i«Munk   v.    Frink,    106    N.    W.  J.  Eq.  218. 
425;  Walker  v.  McMahn,  and  State 


THE   EXECUTIVE — ORGANIZATION  103 

of  such  boards  as  may  be  specifically  exempted; 18  but 
it  was  held  that  the  provisions  of  the  Washington 
State  Code  creating  city  boards  of  health  do  not  apply 
to  any  city  in  which  a  board  of  health  is  organized, 
and  a  health  officer  appointed,  under  a  special 
charter.19 

The  fact  that  constitutional  provisions  confer  upon 
a  state  board  of  health  supervision  of  matters  pertain- 
ing to  public  health  has  no  application  when  the  board 
declines,  or  neglects,  to  interfere  with  municipal  ordi- 
nances.20 

Actions  by  the  board  should  be  formal.  The  record 
should  show  that  rules,  regulations,  or  orders  are  form- 
ally passed.  The  record  should  show  who  were  pres- 
ent at  the  meeting,  and  by  what  vote  a  matter  was 
passed  or  rejected.  All  rules  and  regulations  should 
be  published.21  The  conditions  imposed  as  to  manner 
of  making  rules  must  be  observed.  When  the  charter 
of  a  borough  does  not  confer  the  veto  power  upon  the 
chief  burgess,  and  he  is  not  a  member  of  the  council, 
his  concurrence  in  the  rules  and  regulations  of  a  board 
of  health  is  not  necessary.22  The  records  of  boards  of 
health  are  not  to  be  used  as  evidence  between  private 
parties  in  all  cases.  Within  its  legitimate  objects  and 
purposes  the  record  in  question  is  proper  evidence.  In 
the  absence  of  positive  declaration  on  the  part  of  the 
legislature,  it  will  not  be  presumed  that  the  rights  of 
private  citizens  are  to  be  foreclosed  by  the  opinion  of 
a  public  health  officer  contrary  to  the  general  rule  of 

is  People  v.  Monroe  County,   18  21  Reed  v.   People,   1   Parker  Cr. 

Barb.  567.  481. 

if  State  ex  rel.  Rose  v.  Hindley,  --  Board  of  Health  rules  in  Bor- 

121  Pae.  447.  oughs,   14  Pae.  C.   C.   116;   s.  c.  3 

20  Logan  v.  Child,  41  So.  197.  D.  R,  225. 


104  PUBLIC   HEALTH   ADMINISTRATION 

evidence,  however  learned  or  conscientious  that  officer 
may  be.23  It  is  quite  possible  that  for  preventive  pur- 
poses it  might  be  necessary  to  legally  regard  a  certain 
case  as  one  of  infectious  disease,  yet  after  the  case 
is  all  over,  and  the  patient  has  recovered,  all  doubt 
may  be  dispelled,  and  the  case  prove  to  be  noninfec- 
tious. During  the  period  of  doubt  the  safety  of  the 
community  demands,  perhaps,  that  the  case  be  isolated 
as  infectious.  During  that  time  it  should  be  regarded 
legally  as  infectious.  Scientifically  it  may  not  be  infec- 
tious. We  may  therefore  say  that  for  administrative 
purposes  it  should  be  regarded  as  legally  infectious, 
but  in  a  suit  for  damages  for  causation  it  must  be  con- 
sidered as  legally  not  infectious. 

§  120.  Subjection  of  the  trained  specialist  to  the 
untrained  official.  There  is  another  very  strong  objec- 
tion to  the  board  idea,  which  is  specially  forceful  rela- 
tive to  health  administration.  The  board  necessitates 
the  subjection  of  the  trained  professional  administrator 
to  the  non-professional  advisor.  A  chain  is  only  as 
strong  as  its  weakest  link.  Admittedly,  today  there 
are  very  few  competent  health  administrators.  The 
position  requires  a  special  education  and  training  such 
as  finds  practically  no  field  for  employment  outside  of 
the  public  service.  The  importance  of  this  department 
demands  the  very  best  qualifications  possible  in  its 
officers.  It  is  practically  impossible  to  appoint  a  board 
of  sanitarians  of  equal  value.  Every  member  of  a  board 
below  the  best  man  for  this  special  work,  no  matter 
how  competent  he  may  be  in  other  lines  of  professional 
activity,  is  so  much  dead  weight  upon  the  administra- 

23  Brotherhood    of    Painters    v. 
Barton,  92  N.  E.  64. 


THE   EXECUTIVE ORGANIZATION  105 

tion.  His  presence  may  be  positively  antagonistic  to 
good  work,  on  account  of  his  lack  of  special  education 
and  experience.  He  may  even  help  to  force  the  board 
into  some  ultra  vires  tort,  for  which  the  competent  man, 
who  has  been  overruled,  will  be  held  equally  liable 
legally. 

Whereas,  in  Prussia  and  in  France  the  professional 
administrator  is  only  subject  to  a  general  and  financial 
supervision  and  control,  in  England  "the  unprofes- 
sional administrators  are  supreme;  they  are  the 
authorities,  and  the  salaried  experts  are  merely  their 
agents  and  servants. ' ' 24  This  is  not  indicative  of  good 
business  sense.  It  is  neither  productive  of  efficiency 
nor  of  economy,  yet  the  United  States  has  adopted  the 
English  policy;  and  by  our  system  of  separation  of 
powers  the  evils  of  the  plan  must  be  intensified  in 
America.  In  England  the  boards  have  some  power 
of  legislation.  In  America  they  have  none.  The  legis- 
lation must  be  by  the  legislature. 

We  find  then  that  generally  in  the  United  States 
the  trained  sanitarian  is  (if  employed  at  all)  subject 
to,  and  hampered  by  a  board  of  health  composed  of 
men  who  know  relatively  little  of  the  science  of  public 
health.  The  professional  health  administrator  should 
be  the  real  head  of  the  department. 

Boards  are  generally  unpaid,  or  paid  a  nominal  com- 
pensation. In  Illinois,  for  example,  the  statutes  pro- 
vide that  aside  from  the  Secretary,  no  member  of  the 
State  Board  of  Health  shall  receive  any  compensation 
for  his  services.25  Especially,  in  an  office  requiring  a 
special  technical  education  like  that  of  health  adminis- 

2*  Percy  Ashley,  Local  and  Cent.  25  Rev.    Stat.,   Chap.    126a,    8ec. 

Gov.,  p.  13.  11. 


106  PUBLIC   HEALTH   ADMINISTRATION 

tration,  there  is  no  better  reason  for  expecting  a  physi- 
cian to  give  his  service  to  the  community,  than  there 
would  be  for  requiring  a  judge  to  serve  without  com- 
pensation, or  demanding  that  bankers  give  the  use  of 
the  needed  funds  for  public  improvements.  Such  a 
provision,  therefore,  as  to  prohibit  compensation  opens 
the  door  to  fraud  and  inefficiency;  to  fraud,  because 
the  tendency  is  for  the  officer  to  get  his  compensation 
indirectly;  to  inefficiency,  because  competent  men  can- 
not afford  to  accept  the  responsibility,  and  the  office 
becomes  a  political  asset  for  the  control  of  elections. 

In  the  same  state  of  Illinois  some  time  ago  there 
was  appointed  a  commission  on  industrial  diseases,  and 
it  was  provided  that  the  members  should  not  receive 
compensation,  though  an  appropriation  was  made  for 
the  necessary  investigation.  In  order  to  be  able  to  do 
the  work  required,  a  competent  person  was  obliged  to 
resign  from  the  commission.  In  other  words,  the  com- 
petent person  must  be  subordinate  to  those  who  were 
not  competent,  or  who  did  not  devote  their  best  thought 
and  time  to  the  public  duties.  Clearly,  this  is  not  in 
accord  with  business  experience  and  usage. 

§  121.  Organization.  In  the  states  of  the  American 
Union  the  executive  chief  is  the  Governor.  This  is 
provided  in  each  of  the  state  constitutions.  The  organi- 
zation of  the  remainder  of  the  executive  departments 
is  determined  by  the  constitutions  and  the  statutes.  In 
general  it  may  be  said  that  the  authority  of  the  Gov- 
ernor over  the  other  executive  officers  is  often  very 
slight.  The  tendency  in  legislation  has  been  to  mul- 
tiply governmental  factors,  and  to  entrust  purely 
administrative  matters  to  boards  composed  of  non- 
expert politicians,  who  hold  office  for  a  limited  period, 


THE   EXECUTIVE ORGANIZATION  107 

and  too  often  use  their  positions,  through  the  control 
of  patronage,  to  influence  elections.  According  to  the 
constitutional  provisions,  or  statutory  enactment,  these 
executive  officers  obtain  their  positions  either  by  gen- 
eral election,  or  by  appointment.  When  by  appoint- 
ment, it  is  customary  for  the  appointment  to  be  made 
by  the  Governor,  with  the  advice  and  consent  of  the 
senate;  or  by  the  Governor  alone,  or  by  one  of  his  sub- 
ordinates. 

§  122.  Individual  responsibility.  The  key  to  effi- 
ciency— and  that  includes  economy — in  administration 
is  individual  responsibility.  This  is  true  whether  we 
consider  manufacturing,  mercantile,  or  governmental 
administration.  This  element  is  of  importance  in  exact 
ratio  with  the  increase  in  the  magnitude  of  the  concern, 
and  the  amplitude  of  its  operations.  It  is  quite  pos- 
sible for  a  country  store,  for  example,  to  be  conducted 
fairly  well,  where  each  clerk  sells  ginghams,  oats, 
nails,  and  mowing  machines,  and  also  takes  his  turn 
in  distributing  the  mails  and  billing  express  packages. 
The  proprietor  is  at  the  same  time  close  to  his  stock, 
his  employees,  and  his  customers.  So  few  persons  are 
involved  in  the  transactions  that  an  item  may  be  easily 
traced.  The  supply  of  any  line  of  goods  presents  few 
varieties  and  all  are  easily  accessible.  Even  a  stranger 
might  readily  determine  for  himself  whether  or  not  a 
particular  pattern  of  dress-goods  were  in  stock.  On  the 
other  hand,  in  an  establishment  like  that  of  Marshall 
Field  and  Company,  economy  and  efficiency  demand 
that  the  book-keeper  do  nothing  else;  the  lace  salesman 
must  know  where  to  find  any  one  of  a  thousand  pat- 
terns; and  each  department  must  be  accurately  super- 
vised.   In  such  an  establishment  it  would  be  manifestly 


108  PUBLIC    HEALTH   ADMINISTRATION 

impossible  for  each  employee  to  be  directly  subordi- 
nate to  one  general  manager.  Neither  can  the  manager 
know  personally  each  of  the  customers.  The  manager 
must  deal  with  generalities;  the  submanagers,  with 
lesser  generalities ;  the  heads  of  departments,  with  par- 
ticularities only  in  emergencies;  and  the  individual 
clerks  must  watch  the  details.  Throughout  all  there 
must  be  a  perfect  system,  with  definite  subordination 
leading  to  one  responsible  head. 

This  idea  of  specialization,  and  non-duplication,  is 
still  better  illustrated  in  manufacturing  concerns.  In 
the  small  shop  one  workman  may  do  any  one  of  the 
acts  necessary  in  the  manufacture  of  a  given  machine ; 
he  may  work  with  the  saw,  the  plane,  the  chisel,  and 
the  sandpaper  upon  the  wood;  he  may  shape  the  iron 
with  forge  or  lathe;  he  may  nickel  the  bright  metal, 
and  paint  or  varnish  the  wood.  In  the  large  shop  one 
man  may  spend  a  lifetime  doing  only  a  single  act  of  the 
many  required.  Each  group  of  workmen  is  under  a 
foreman;  the  foremen  are  under  department  heads,  and 
all  are  under  one  general  manager.  There  may  be  a 
board  of  directors  who  may  be  said  to  be  the  legisla- 
tive body  of  the  concern,  but  when  this  board  has 
decided  upon  a  plan  it  is  never  left  to  a  board  to  execute 
it.  A  commission  might  be  given  to  several  workers 
to  investigate  a  proposition,  or  to  devise  a  plan  of 
action,  but  such  experiment  or  test  is  distinct  from 
executive  administration,  though  the  administration 
may  be  guided  by  the  results  thus  obtained.  A  manu- 
facturing concern  like  the  Harvester  Company,  or  the 
Illinois  Steel  Company  would  not  entrust  the  responsi- 
bility for  the  management  of  a  shop  or  an  office  to  a 
board  of  equal  authority  among  its  members. 


THE   EXECUTIVE ORGANIZATION  109 

§  123.  Principles  in  organization.  According  to  this 
fundamental  principle  of  individual  responsibility, 
organized  into  a  system,  our  state  executive  business 
should  be  readjusted  in  several  radical  features.  In 
many  states  this  reorganization  would  require  constitu- 
tional amendment  in  order  to  make  the  change  com- 
plete. Fortunately,  so  far  as  relates  to  health  depart- 
ments, the  reorganization  would  be  dependent  largely 
upon  the  internal  arrangement  of  the  departments,  and 
aided  by  statutory  enactment.  The  requirements  for 
efficient  organization  in  state  government  are: 

1.  The  Governor  must  appoint,  and  be  responsible 
for  all  executive  subordinates. 

2.  Each  separate  office,  or  department,  must  be  man- 
aged by  one  man. 

3.  Each  responsible  officer  should  be  an  expert  in 
the  line  of  his  official  duty,  hold  a  permanent  position 
during  efficiency,  and  should  be  paid  an  adequate 
salary,  not  by  fees. 

4.  Each  department  should  be  organized  systematic- 
ally, so  that  the  responsibility  of  each  officer  or 
employee  is  made  definite,  exclusive,  and  tangible. 

The  above  statements  are  general,  and  will  be  con- 
sidered generally,  though  each  has  its  direct  applica- 
tion to  public  health  administration. 

§  124.  Appointment  by  the  governor.  It  is  very  evi- 
dent that  a  man  may  not  be  properly  held  responsible 
for  the  acts  of  a  subordinate  over  whom  he  has  no 
control.  (§  282  et  seq.)  He  may  order,  he  may  criti- 
cise, and  he  may  prefer  charges ;  but  without  the  power 
for  enforcing  his  demands  he  may  not  justly  be  deemed 
responsible  for  the  methods  or  misdeeds  of  his  subor- 
dinates.   Charges  would  fall,  unless  there  were  posi- 


110  PUBLIC    HEALTH   ADMINISTRATION 

tive  evidence  of  malfeasance  in  office,  but  a  difference 
in  methods,  without  malfeasance,  might  be  equally  dis- 
astrous to  the  efficient  administration.  He  who  is 
expected  to  supervise  a  large  factory  or  mercantile 
concern  would  demand  the  right  to  select  his  own 
workmen.  Thus  we  find  the  statement  in  regard  to 
governmental  administration,  that  the  primary  rule  is 
that  the  executive  must  have  the  right  to  appoint  to 
office.26  This  statement  is  true  relative  to  every  grade 
of  officer,  though  it  is  to  be  presumed  that  the  superior 
may  reasonably  have  a  certain  supervision  over  all 
inferior  grades. 

§  125.  Power  to  appoint  not  inherent.  The  power  to 
appoint  subordinates  is  not  an  inherent  executive  func- 
tion.27 In  point  of  fact,  both  in  the  national  executive 
and  in  state  administration,  this  power  of  appointment 
is  frequently  taken  from  the  superior,  either  directly 
or  indirectly.  (§285.)  Thus,  though  the  President 
may  nominate  subordinates,  we  have  seen  a  hostile 
senate  refuse  to  confirm,  and  thus  block  appointments 
for  political  reasons.  So  in  state  governments  also, 
according  to  the  constitutions  or  statutes  of  many 
states,  presumably  subordinate  officers  may  be  elected. 
Thus  according  to  the  constitution  of  Illinois,28  for 
example,  the  Secretary  of  State,  Treasurer,  Super- 
intendent of  Public  Instruction,  Attorney  General,  and 
Auditor  of  Public  Accounts  are  all  elected.  In  no 
sense  are  such  officers  really  subordinate  to  the  Gov- 
ernor. They  are  nominated  and  elected  by  the  same 
powers  as  is  the  Governor  himself.    They  cannot  then 

26  Wyman,  Administrative  Law,  Boucher,  3  N.  Dak.  389 ;  People  v. 
48.  Freeman,  80  Cal.  233. 

27  Elliott,  259 ;  citing  Fox  v.  Mc-  28  Art.  V,  Sec.  1. 
Donald,    101    Ala.    46;     State    v. 


THE  EXECUTIVE — ORGANIZATION  111 

be  responsible  to  him.  They  are  responsible  only  to 
the  people  of  the  state.  "  Every  officer  who  is  elected 
by  the  people  is  upon  equal  terms  with  every  other 
(elected)  officer."29  The  result  is  that  the  Governor, 
nominally  the  chief  executive  of  the  state,  has  only 
responsibility  over  a  portion  of  the  administrative 
business.  He  is  neither  a  "Governor,"  nor  a  "Chief 
Executive,"  except  in  name  only.  He  really  ranks 
with  his  Secretary  of  State,  Superintendent  of  Instruc- 
tion, and  Auditor.  It  is  quite  possible  that  one  or  all 
may  be  completely  out  of  harmony  with  the  Governor. 
Though  all  belong  to  the  one  branch  of  government, 
the  executive,  their  ideas  and  methods  may  be  so  at 
variance  as  to  effectually  block  most  of  the  operations 
of  government.  It  may  easily  happen  that  men  who 
are  thoroughly  incompetent  may  be  elected  to  these 
offices,  especially  under  the  direct  primary  system  of 
election,  by  which  a  small  minority  is  empowered  to 
effect  an  election.  This  incompetence  also  tends 
toward  inefficiency.  Clearly,  efficiency  in  administra- 
tion demands  that  there  be  harmony  of  action  in  the 
department.  A  house  divided  against  itself  cannot 
stand,  and  to  reach  the  same  goal  the  different  mem- 
bers of  the  department  must  not  attempt  to  travel 
different  roads. 

For  such  reasons  Mr.  Justice  Miller  viewed30  with 
some  alarm  the  growing  tendency  to  remove  the 
appointing  power  from  the  President,  through  the 
operation  of  the  patronage  system.  Admitting  that 
there  may  be  a  possibility  of  harm  when  carried  to 

29  Wyman,  Admin.  Law,  46. 

30  Miller,  On  the  Constitution,  p. 
158. 


112  PUBLIC    HEALTH    ADMINISTRATION 

an  extreme,  the  patronage  system  practically  amounts 
only  to  this,  that  there  shall  be  harmony  between  the 
legislative  and  executive  branches  of  the  government. 
The  framers  of  our  constitutions  very  wisely  provided 
for  a  degree  of  this  harmonizing  influence  by  requiring 
that  certain  appointments  should  have  the  approval  of 
the  senate  before  they  became  effective. 

Perhaps  the  best  illustration  of  the  weakness  of  an 
executive,  through  deprivation  of  power,  may  be  found 
in  the  republic  of  France.  Though  the  French  Consti- 
tution invests  the  President  with  great  nominal  power, 
his  every  act  is  so  hampered  that  he  is  little  more  than 
a  figurehead.  By  the  constitutional  law  of  February 
25,  1875,  it  is  stipulated  that  "every  act  of  the  Presi- 
dent of  the  Republic  shall  be  countersigned  by  a  min- 
ister."31 The  same  act  further  provides32  that 
"The  Ministers  are  jointly  and  severally  responsible 
to'the  Chambers  for  the  general  policy  of  the  govern- 
ment, and  individually  for  their  personal  acts."  .In 
consequence  of  such  restrictions  Sir  Henry  Maine 
says : 33  "  There  is  no  living  functionary  who  occupies 
a  more  pitiable  position  than  a  French  President.  The 
old  kings  of  France  reigned  and  governed.  The  Con- 
stitutional King,  according  to  M.  Thiers,  reigns  but 
does  not  govern.  The  President  of  the  United  States 
governs,  but  he  does  not  reign.  It  has  been  reserved 
for  the  President  of  the  French  Republic  neither  to 
reign  nor  yet  to  govern. ' ' 

§126.  Restrictions  in  appointment.  Though  the 
responsibility  relative  to  appointments  should  rest 
with  the  superior  officer,  his  freedom  of  action  may  be 

3i  Art.  3.  33  Popular  Government,  250. 

32  Art.    6. 


THE   EXECUTIVE — ORGANIZATION  113 

limited  by  legislative  enactment  as  to  the  qualifications 
of  appointees.  (§§  305-308.)  Thus  it  is  quite  customary 
that  it  be  required  as  a  qualification  for  office  that  the 
appointee  be  a  citizen,  and  of  lawful  age.  Time  of 
residence  in  the  district  may  be  a  qualification.  Special 
qualifications  may  be  demanded  for  special  offices, 
such  as  that  the  person  appointed,  (or  elected),  shall 
be  a  lawyer,  or  a  physician,  or  otherwise  skilled  in 
some  particular  branch  of  knowledge  demanded  by 
the  office.34  A  man  was  appointed  interpreter  in  a 
district  court  in  New  York  though  he  knew  no  foreign 
language.  He  sued  the  city  for  his  salary.  The  court 
held  that  "By  accepting  the  position  of  interpreter, 
when,  if  he  understood  no  foreign  language,  he  could 
not  interpret  at  all,  he  stands  convicted  of  fraud, 
either  upon  the  officer  who  appointed  him,  and  upon 
the  public  from  whom  he  was  to  receive  compensation, 
or  upon  the  latter  alone. " 35  It  will  be  noted  that  this 
case  was  not  based  upon  a  statutory  requirement,  but 
it  rests  wholly  upon  inherent  qualifications.  It  is  sel- 
dom possible  so  easily  to  demonstrate  unfitness  aris- 
ing from  lack  of  knowledge,  but  appointment  in  the 
public  health  service  demands  certain  technical  train- 
ing, even  though  the  statute  may  not  prescribe  it. 
Requirement  that  boards  of  officers  shall  be  taken 
from  different  political  parties,  has  been  sustained  in 
Massachusetts,3'''  and  in  New  York.37  In  Michigan 
such  a  requirement  was  deemed  unconstitutional  as  a 
violation  of  the  doctrine  that  political  opinions  cannot 

34  People  v.  May,  3  Mich.  508.  -  Rogers  v.  Buffalo,  123  N.  Y. 

35  Conroy  v.  Mayor,  6  Daly,  490;       173. 
affirmed,  67  N.  Y.  610. 

3«  Commonwealth      v.      Plaisted, 
148  Mass.  375. 


114  PUBLIC    HEALTH   ADMINISTRATION 

be  made  a  test  of  the  right  to  hold  office.38  It  is  now  a 
well  recognized  principle  that  certain  civil  service  tests 
may  be  demanded  of  appointees,  unless  some  special 
constitutional  provision  be  thus  violated.39  (§310.) 
It  is  sometimes  held  that  civil  service  requirements 
violate  constitutional  provisions.40  The  statutes  may 
stipulate  certain  disqualifications  for  office,  such  as 
conviction  of  crime.41    . 

§  127.  Power  of  removal.  It  is  not  enough  that  the 
superior  officer  shall  have  the  power  to  appoint  to 
office.  The  power  to  appoint  implies  also  the  power  of 
removal  from  office.  (§351.)  Unless  the  term  of  office 
be  definitely  fixed  by  statutory  enactment  the  power  of 
removal  is  incidental  to  that  of  appointment.42  One 
of  the  earliest  Illinois  decisions  was  to  the  effect  that 
the  Governor  has  not  the  power  of  removal  unless  it 
be  expressly  given.43  This  power  of  removal  is  given 
by  the  state  constitution  of  1870.44  The  same  argu- 
ment which  Mr.  Madison  used  relative  to  the  Presi- 
dent, applies  also  to  all  appointing  officers.  He  said : 45 
"It  is  absolutely  necessary  that  the  President  should 
have  the  power  of  removing  from  office.  It  will  make 
him  in  a  peculiar  manner  responsible  for  their  con- 
duct, and  subject  him  to  impeachment  himself  if  he 
suffers  them  to  perpetrate  with  impunity  high  crimes 

ss  Attorney   General   v.    Detroit,  «  People  v.   Thornton,   25   Hun 

58  Mich.  213.     Also  Evansville  v.  456;    People    v.    Goddard,    8    Col. 

State,    118    Ind.    426;    Brown    v.  432;   State  v.  Pritchard,  36  N.  J. 

Haywood,  4  Heisk.  357;  Baltimore  L.  101. 
v.  State,  15  Md.  376.  42  Goodnow,     Princip.     of     Ad. 

39Eogers  v.  Buffalo,  123  N.  Y.  Law,    135,   citing   Ex   parte   Hen- 

173.  nen,  13  Peters,  230. 

40  People   v.    Durston,    3    N.    Y.  «  Field  v.  People,  3  111.  79. 

Supp.  522;    People  v.   Angle,   109  44  Art.  V,  Sec.  12. 

N.  Y.  564.  45  1  Annals  Cong.  (1789)  350. 


THE  EXECUTIVE — ORGANIZATION  115 

and  misdemeanors  against  the  United  States,  or 
neglects  to  superintend  their  conduct  so  as  to  check 
their  excesses."  To  prevent  delinquencies  is  often  as 
important  as  to  check  their  excesses — perhaps  more  so. 
The  officer  is  responsible  only  to  the,  appointing  power 
by  whose  favor  he  holds  his  position.  If  the  appoint- 
ing officer  has  no  power  of  removal  the  officer  is  inde- 
pendent, and  so  long  as  he  commits  no  crime  he  is 
free  from  possible  discipline.  Evidently  such  an 
arrangement  does  not  foster  efficiency  in  administra- 
tion. Conditions  relative  to  appointment  and  removal 
from  office  will  be  more  fully  treated  in  a  subsequent 
chapter.     (Chap.  X.) 

§128.  One  man  in  charge  of  each  department. 
Executive  efficiency  necessitates  the  idea  of  oneness. 
When  the  responsibility  is  divided  among  the  members 
of  a  board  whose  members  are  equal  in  power,  human 
nature  causes  each  to  shirk  the  disagreeable  duty,  and 
to  claim  the  credit  for  successes  in  administration.  It 
often  happens  that  a  necessary  act  may  be  resented  by 
certain  individuals.  The  law  must,  however,  be 
enforced.  Administrative  vigor,  expedition,  and  cer- 
tainty of  action  are  only  possible  with  one  executive.46 

The  name  executive  indicates  action;  not  thinking, 
nor  judging.  The  executive  department  is  not  charged 
with  the  making  of  laws  nor  with  weighing  evidence. 
Its  duty  is  to  put  into  operation  the  laws  that  have 
been  enacted.  An  absolute  separation  of  powers 
according  to  the  three  branches  is  not  possible,  and 
there  are  times  when  council  is  advisable.    Thus  we 

4«  Federalist,  No.  70;  Story, 
Constitution,  Sec.  1420  et  seq.; 
Miller,  Constitution,  94. 


116  PUBLIC  HEALTH  ADMINISTRATION 

find  that  the  President  has  his  Cabinet.  He  is  respon- 
sible, but  they  are  his  advisers.  The  same  idea  is 
applicable  in  any  executive  department  in  which  the 
duties  are  discretionary,  rather  than  mandatory.  The 
responsibility  must  rest  with  the  one  man,  and  one 
man  only. 

That  justice  may  be  done  to  all,  our  governmental 
system  provides  for  trial  by  jury.  So  there  are  cer- 
tain administrative  processes  which  resemble  trial  by 
jury.  To  prevent,  or  minimize,  the  possibility  that  per- 
sonal prejudice,  either  as  to  persons  or  ideas,  may  bias 
judgment,  it  is  very  right  and  proper  that  examina- 
tions for  license  to  practice  certain  professions  should 
be  conducted  by  boards  composed  of  several  members, 
differing  as  to  personal  view.  Such  boards  are  in  fact 
juries  whose  finding  must  be  collective.  This  act, 
though  it  be  in  an  executive  department,  is  not  execu- 
tive in  nature,  but  preliminary  to  the  executive  act  of 
issuing  the  license.  This  fact  should  be  borne  clearly 
in  mind  when  considering  a  state  board  of  health,  for 
example,  which  is  also  charged  with  such  duties.  Logi- 
cally, the  application  for  the  license  should  be  made  to 
the  head  of  the  health  department  in  such  a  case,  who, 
after  satisfying  himself  that  the  specified  preliminary 
requirements  have  been  complied  with,  orders  the  appli- 
cant before  this  special  jury  for  trial.  The  finding 
of  the  jury  should  be  returned  to  the  executive,  and  he 
should  then  issue  the  license  if  it  be  deemed  proper. 

§129.  Experts,  paid  by  salary.  There  is  another 
fundamental  business  principle  which  is  well  illus- 
trated in  all  large  commercial  establishments.  Other 
things  being  equal,  a  man  can  do  more  and  better  work 
in  a  line  in  which  he  is  an  expert.    In  most  govern- 


THE  EXECUTIVE — ORGANIZATION  117 

mental  executive  positions,  the  duties  require  a  special 
training  and  education.  For  this  special  training  there 
may  be  little  demand  outside  of  the  governmental  work. 
As  an  incentive  to  acquire  special  fitness  the  officer 
should  be  led  to  expect  permanency  of  tenure  with  pay 
commensurate  with  the  character  of  the  duties.  In 
commercial  business  it  is  found  to  be  economical  to  pay 
sufficiently  large  salaries  to  the  higher  employees  to 
make  it  an  object  for  them  to  study  constantly  how 
their  particular  branches  of  the  work  may  be  improved, 
either  as  to  quality  of  work  performed  or  as  to  amount 
of  output.  Such  employees  are  retained  so  long  as 
they  can  ' '  make  good, ' '  to  use  the  business  expression, 
and  the  pay  is  made  sufficiently  high  so  that  they  will 
not  be  looking  for  other  positions.  The  state  must  com- 
pete with  commercial  establishments  for  men.  Cer- 
tainly the  business  of  the  entire  commonwealth  is  as 
important  as  that  of  any  portion,  as  represented  by  a 
single  commercial  establishment.  In  spite  of  this  fact, 
the  salaries  paid  to  governmental  officers  and  em- 
ployees in  the  United  States  are  almost  universally 
insignificant ;  and  as  previously  stated,  it  is  sometimes 
specially  stipulated  that  the  officer  shall  receive  neither 
salary  nor  fee.  Such  a  provision  is  contrary  to  all  busi- 
ness principles.  It  necesitates  that  the  trained  expert 
must  be  a  mere  employee,  and  subject  to  the  orders  of 
those  who  are  incompetent  to  give  proper  direction. 
Commercial  failure  would  overtake  any  mercantile  or 
manufacturing  establishment  which  would  attempt  to 
operate  upon  a  similar  plan.  ( §  321. ) 

§130.  Paid  by  salary,  not  by  fees.  Unless  the 
amount  of  business  transacted  by  an  official  be  insig- 
nificant, he  should  be  paid  by  salary,  not  by  fee. 


118  PUBLIC   HEALTH   ADMINISTRATION 

Though  fees  be  received  from  those  having  business 
with  a  department,  those  fees  should  be  the  property 
of  the  government,  either  city,  state,  or  nation,  as  the 
case  may  be.  If  compensation  be  by  fee  for  the  officer 
there  is  a  constant  temptation  to  so  manipulate  the 
business  as  to  increase  the  number  or  amount  of  fees 
received.  This  operates  to  absorb  unnecessary  time, 
and  to  increase  the  bulk  of  business  transacted.  It 
may  foster  imperfect  work.  Thus,  in  examinations  for 
license  to  practice  medicine,  especially  where  there 
may  be  granted  reciprocal  licenses  in  other  states,  in 
order  to  receive  as  many  fees  as  possible  a  board  has 
seemed  to  be  inclined  to  be  exceedingly  lenient.  In  that 
way  it  has  attracted  candidates  who  wish  to  practice  in 
other  states,  from  which  they  later  received  the  recip- 
rocal licenses.  Again,  the  fee  compensation  tends  to 
give  the  preference  to  matters  paying  the  larger  fees, 
rather  than  to  the  affairs  which  are  essentially  the  most 
important,  or  the  most  urgent. 

If  the  amount  of  business  transacted  by  an  official  be 
very  variable,  and  if  it  require  only  a  small  portion  of 
his  time,  it  may  be  that  the'  fee  system  is  the  only 
method  of  compensation  practicable.  Even  here  the 
system  is  pernicious.  The  tendency  is  for  the  officer  to 
neglect  his  official  duties  when  his  private  business  is 
nourishing,  and  to  be  unduly  active  when  he  has  more 
time.  The  real  duties  of  his  office  might  be  quite  the 
reverse.  If  possible,  then,  a  fair  salary  should  be 
determined  upon,  and  the  fees  received  be  paid  into  the 
general  treasury.  This  will  enable  the  responsible 
superiors,  which  finally  means  the  people  of  the  terri- 
tory, to  know  more  definitely  what  is  being  done,  and 
what  is  being  accomplished. 


THE   EXECUTIVE ORGANIZATION  119 

§  131.  Responsibility  must  be  tangible.  As  a  neces- 
sary corollary  to  the  foregoing,  in  the  interest  of  effi- 
ciency each  administrative  department  must  be  so  sys- 
tematically organized  that  finally  one  man  shall  be 
definitely  responsible  for  certain  portions  of  the  work, 
and  that  all  portions  shall  be  definitely  provided  for. 
Certain  supervision  must  be  provided,  grouping  por- 
tions similar  into  bnreans.  The  heads  of  the  bureaus 
must  be  responsible  to  the  department  chief,  and  may 
serve  as  his  advisory  council.  It  is  not  to  be  pre- 
sumed that  a  department  chief  will  give  personal  at- 
tention to  individual  items,  unless  they  be  very  excep- 
tional. He  must  deal  with  the  general  problems  of 
administration. 

§  132.  Organization  of  state  department  of  health. 
As  illustrating  this  idea,  and  giving  some  general  con- 
ception of  the  organization  of  a  state  department  of 
health,  the  following  is  suggested : 
Commissioner  of  Health 
Assistant  Commissioner 
Administrative  Assistants 
Infectious  Disease  Inspector 
Assistants 

County  and  Local  Officers 
Veterinarian 

Deputy  Veterinarians 
Occupational  Disease  Investigator  (and  Assist- 
ants?) 
Lodging  House  Inspector 

Assistants 
Chief  Dairy  Inspector 
Assistants 


120  PUBLIC   HEALTH  ADMINISTRATION 

Laboratory  Chief 
Chemist 
Bacteriologist 
Pharmacist 
Water  Analyst 
Food  and  Drug  Inspector 
Assistants 
Recorder  of  Vital  Statistics 
Assistants 
Local  Registrars 
Chief  Clerk 
Correspondence  Clerks 
Accountant 
Assistants 
Librarian 

Records  Assistant 
Library  Assistant 
Editor 
License  Council,  consisting  of  one  member  from 
each  board  and  presided  over  by  the  Com- 
missioner 
Examining  board  for 
Physicians,  Surgeons,  Midwives,  Embalmers, 

and  Nurses 
Pharmacists 
Dentists 
Veterinarians 
Entomologist 

Field  Assistants 
Sanitary  Engineer 
With  such  an  organization,  though  an  item  might 
involve  the  attention  of  a  number  of  members  from  the 
department,  it  need  not  require  the  notice  of  the  Com- 


THE  EXECUTIVE — ORGANIZATION  121 

missioner.  For  example:  suppose  that  a  local  health 
officer  report  a  number  of  cases  of  infectious  disease 
in  his  district,  apparently  traceable  to  milk  imported 
from  another  district.  He,  being  responsible  for  his 
district,  and  finding  the  origin  of  the  trouble  in  an- 
other territory,  must  call  the  attention  of  his  superior 
to  the  facts.  The  assistant  commissioner,  recognizing 
that  the  other  local  officer  had  not  prevented  the 
spread  of  the  disease,  would  call  upon  the  chief  dairy 
inspector  for  information,  and  the  dairy  inspector 
might  detail  men  to  make  a  fresh  inspection;  or  in- 
fectious disease  inspectors  might  be  sent  to  the  sus- 
pected territory.  According  to  this  scheme  every  man 
in  the  service  is  responsible,  and  he  cannot  disclaim 
the  responsibility. 

An  efficient  health  service  should  assist  commerce. 
Without  an  efficient  organization,  in  such  cases  as  that 
just  instanced,  it  would  be  necessary  for  the  first  local 
health  official  to  stop  all  importation  of  milk  from  the 
infected,  or  suspected  territory.  With  efficient  or- 
ganization it  should  be  easy  to  discover  the  point  of 
infection,  and  thus  permit  the  noninfected  milk  to  be 
delivered.  By  making  some  official  responsible  for 
every  point  of  danger,  and  by  making  his  tenure  of 
position  depend  upon  the  accuracy  of  his  work,  as 
shown  by  results,  individual  attention  to  duty  is  stim- 
ulated, and  efficiency  is  magnified. 

With  such  an  organization,  in  which  every  man  is 
definitely  responsible  for  a  definite  portion  of  the 
work,  the  time  and  attention  of  the  overseers  may 
safely  be  devoted  to  the  general  questions  arising.  To 
use  a  mathematical  illustration,  the  chiefs  will  work 
out  the  algebraic  problems,  leaving  the  subordinates  to 


122  PUBLIC   HEALTH   ADMINISTRATION 

substitute  values  in  the  result  for  special  application, 
and  to  solve  the  arithmetical  problems  when  a  general 
solution  is  not  possible,  or  advisable. 

§  133.  Excess  of  power.  It  may  be  thought  by  some 
that  such  an  organization  as  this  just  mentioned  will 
give  to  the  superior  officers  too  great  power,  and  an 
authority  which  may  be  easily  abused.  It  is  true  that 
many  governmental  problems  are  first  met  by  the  ex- 
ecutive department.  Especially  in  health  administra- 
tion, it  is  frequently  necessary  to  act  at  once,  and  with- 
out the  aid  of  the  other  branches.  To  guard  against 
excess  in  such  cases  we  have  the  power  of  the  judiciary. 
The  courts  are  always  open  to  stop  executive  action 
by  injunction,  when  it  appears  that  the  action  is  not 
justifiable.  Moreover,  if  the  executive  have  worked 
injury  unnecessarily,  the  court  will  hold  the  individual 
officer  responsible,  as  will  be  shown  in  a  subsequent 
chapter.     (Chapter  XI). 

The  chief  restraint  upon  administrative  excess  must 
be  found  in  the  legislature.  As  we  have  repeatedly 
stated,  the  executive  has  no  real  legislative  power.  Its 
action  pre-supposes  legislative  action  by  the  proper 
branch.  If  the  legislature  have  done  its  duty,  the 
executive  is  bound  by  the  course  there  laid  down. 
Where  the  legislature  has  failed  to  act,  it  may  be  neces- 
sary for  the  executive  to  take  the  responsibility 
of  action  without  special  authority.  This  fact  should 
be  kept  clearly  in  mind.  The  executive  must  act,  and 
its  course  will  probably  be  upheld  by  the  court  in  the 
absence  of  previous  legislation,  even  though  the 
method  taken  may  not  prove  to  be  the  best,  provided 
that  it  seems  to  be  reasonable. 

§  134.  Appeal  in  department.    A  source  of  weakness 


THE  EXECUTIVE ORGANIZATION  123 

in  our  system  of  government  is  found  in  the  general 
failure  to  provide  for  appeal  from  the  decision  of  ex- 
ecutive officers.  Such  an  organization  as  that  just 
proposed  provides  the  machinery  for  appeal.  (§§  141, 
143.)  Practically  it  makes  it  possible  to  carry  appeals 
from  the  holder  of  the  lowest  village  office  to  the 
governor  of  the  state.  Provision  for  appeals  in  the 
executive  department  should  be  made  generally  by 
statute,  determining  how,  and  how  far  such  appeals 
may  be  taken.  The  division  of  powers  assigns  to  the 
legislature  the  making  of  laws;  to  the  judiciary  the 
interpretation  of  the  laws,  and  their  application.  The 
executive  branch  does  the  work.  In  a  large  portion  of 
executive  work  there  is  necessity  for  the  use  of  judg- 
ment. Accordingly  many  officers  are  vested  with  dis- 
cretionary authority.  If  such  officers  fail  to  use  their 
brains,  or  if  they  are  guilty  of  fraud  or  corruption  in 
their  administration,  their  acts  are  subject  to  the  re- 
view of  the  courts ;  but,  as  a  general  rule,  even  though 
a  grave  error  of  judgment  has  been  committed,  the 
decision  of  an  officer  with  discretion  is  not  subject  to 
judicial  review,  unless  such  provision  has  been  dis- 
tinctly made.47  The  act  of  the  officer  with  discretion, 
if  it  really  has  been  the  result  of  a  decision  by  the  offi- 
cer, is  final  and  conclusive  as  to  the  subject  matter  it- 
self. Were  it  not  so — were  the  courts  to  attempt  to 
pass  upon  the  subject  matter  itself,  it  would  be  in 
effect  the  subjection  of  the  executive  to  the  judicial 
branch,  and  the  union  of  the  judicial  and  executive 
duties  in  one  set  of  officers.     Both  of  these  ideas  are 


«  Elliott  v.  Chicago,  48  111.  293 
Waugh  v.  Chauncey,  13  Cal.  11 
TL  S.  v.  Arredondo,  6  Pet.  691 
Charles  River  Bridjre  Co.  v.  War 


ren  Bridge  Co.,  11  Pet.  240;  Al- 
len v.  Blunt,  3  Story,  742;  Fitz- 
gerald v.  Harms,  92  111.  372. 


124  PUBLIC   HEALTH  ADMINISTRATION 

antagonistic  to  our  system;  yet  owing  to  the  lack  of 
provision  for  appeal  within  the  departments,  there  is 
a  constant  tendency  to  attempt  to  get  the  courts  to  pass 
upon  the  discretionary  acts  of  executive  officers. 

Aside  from  the  fact  that  judicial  review  of  execu- 
tive acts  is  antagonistic  to  our  theory  of  government, 
as  a  problem  in  efficiency  such  a  solution  is  not  satis- 
factory. A  general  officer  should  be  more  familiar 
with  the  nature  of  the  problems  before  his  subordinates 
than  one  who  in  no  way  comes  in  contact  with  such 
problems.  The  judge  devotes  his  attention  to  law 
and  its  interpretation ;  it  is  not  to  be  presumed  that  he 
knows  the  relative  merits  of  different  food  preserva- 
tives. Neither  is  he  competent  to  diagnosticate  dis- 
eases. Such  executive  decisions,  when  they  come  be- 
fore him  for  review,  must  be  settled  according  to  the 
opinions  of  others,  rather  than  himself,  and  he  is  not 
even  able  always  to  determine  which  witnesses  are 
most  trustworthy.  The  consequence  is  that  his  deci- 
sion may  be  very  far  from  just.  In  his  blindness  he 
has  reached  out  and  caught  the  aid  which  seems  at  a 
glance  the  safest,  but  he  may  be  greatly  mistaken. 

Errors  in  judgment  of  executives  are  inevitable.  In 
a  well  organized  department  appeal  within  the  de- 
partment can  most  readily  correct  these  mistakes. 
"The  question  before  the  inferior  is,  "What  is  proper 
to  be  done ;  the  question  before  the  superior  is,  Whether 
what  is  done  is  fit.  The  superior  thus  takes  the  whole 
question  up  anew,  and  decides  himself  what  is  just  in 
the  premises  upon  the  merits.  All  of  which  is  of  plain 
advantage  to  the  complainant.  By  the  internal  law 
the  claimant  gets  relief  upon  any  grounds  that  may 


THE  EXECUTIVE — ORGANIZATION  125 

appear." 48  So  in  the  national  government  it  has  been 
held  that  the  official  duty  of  direction  and  supervision 
implies  the  correlative  right  of  appeal  in  every  case 
of  complaint,  although  no  such  appeal  is  expressly 
given.49  "In  the  states,  however,  where  the  head  of 
the  department  does  not  usually  have  the  power  of 
direction,  there  is  no  general  right  of  appeal  from  the 
decision  of  subordinates  to  superiors."50  This  is  es- 
pecially true  where  the  general  officers  are  elected,  and 
therefore  of  equal  rank  with  the  governor. 

In  the  usage  of  the  national  government  there  are 
certain  safeguards  against  oppressing  the  President 
with  unnecessary  appeals.  Thus  it  has  been  held  that 
there  is  no  appeal  from  a  Division  above  the  head  of 
the  Department,  for  the  performance  by  the  Cabinet 
head  of  the  Department  is  regarded  as  the  performance 
by  the  President  himself.51  But  an  appeal  may  be 
made  to  the  President  on  the  question  of  the  jurisdic- 
tion of  an  officer  attempting  to  pass  upon  some  matter 
not  properly  within  his  jurisdiction.52 

§  135.  Duty  of  executive  to  advise  legislation. 
(§99).  Governmental  problems  are  first  met  by  the 
executive.  In  an  organized  department,  made  up  of 
individuals  specially  educated  in  particular  lines,  such 
problems  may  be  better  solved  in  an  intelligent  man- 
ner than  would  be  possible  in  the  ordinary  legislative 
body.  This  is  especially  true  of  a  health  department. 
The  true  scientist  is  a  practical  man.  He  deals  with 
facts  more  than  with  theories.     Though  he  may  at 

48  Wyman,  Ad.  Law,  5.  id.  526;  Wilcox  v.  Jackson,  13  Pet. 

49  Butterworth  v.  IT.  S.,  112  V.      498;  V.  S.  t.  Eliason,  16  Pet.  291; 
S.  50;  Bell  v.  Hearm,  19  How.  252.       Confiscation  eases,  20  Wal.  92,  109. 

so  Goodnow  Prin.  Ad.  Law,  146.  82 15  Opin.  Atty.  Gen.  94. 

M  9  Opin.  of  Atty.  Gen.  462 ;  10 


126  PUBLIC    HEALTH   ADMINISTRATION 

times  group  his  facts  under  some  theoretical  analysis, 
still  it  is  chiefly  the  demonstrable  facts  which  specially 
interest  him.  Intelligent  legislation  must  be  based 
upon  facts.  It  is  therefore  one  of  the  most  important 
duties  of  an  executive  department,  through  regular 
channels,  and  in  due  fonn,  to  set  forth  clearly  the 
facts,  and  with  them,  but  distinct  from  them,  the  ad- 
vised solution.  Too  frequently  departmental  reports 
consist  simply  of  epitomes  of  past  actions,  with  recom- 
mendations sometimes  as  to  future  needs.  No 
recommendation  or  request  from  a  department  is 
worthy  of  consideration  unless  it  be  accompanied  with 
the  basal  facts.  In  a  well  organized  department  cov- 
ering all  the  various  phases  of  the  work,  it  is  then  the 
duty  of  the  subordinates  to  pass  the  facts  up  to  their 
superiors.  They  may  then  collect  the  data  from  wide- 
ly differing  localities,  and  from  different  branches,  so 
that  they  may  be  harmonized  fully  before  presentation 
to  the  legislature.  For  example:  the  milk  problem 
demands  that  facts  be  collected  from  the  health  offi- 
cials in  the  dairy  districts  and  in  the  cities;  from  the 
food  inspectors  and  the  dairy  inspectors;  from  the 
veterinarian  and  perhaps  from  the  entomologist.  Un- 
less all  be  organized  under  one  responsible  head  the 
facts  collected  may  not  be  properly  harmonized.  The 
general  solution  has  been  worked  out  in  several  con- 
flicting ways,  for  each  branch  magnifies  its  own  view- 
point. Under  such  conditions  intelligent  legislation  is 
very  improbable.  The  fault  here  does  not  lie  with  the 
legislative  body.  The  real  fault,  though  it  is  seldom 
recognized,  is  in  the  lack  of  efficient  organization  of 
the  executive. 
§136.  Summary.    A  well  organized  executive  fixes 


THE  EXECUTIVE — ORGANIZATION  127 

responsibility  definitely  upon  every  individual  in  the 
department.  It  therefore  insures  efficiency  because 
delinquency  is  easily  apparent.  Efficiency  is  aided  by 
specialization  of  work,  and  coupling  it  with  special 
training  and  education  of  members  of  the  department. 
Economy  is  favored  by  eliminating  duplication  of  ef- 
forts. Organization  assists  in  the  digestion  of  admin- 
istrative problems .  before  legislation  is  asked,  and 
therefore  assists  in  harmonizing  the  legislative  with 
the  executive  branch.  It  makes  better  legislation  pos- 
sible, and  tends  to  shorten  the  time  needed  for  legis- 
lative action,  and  to  reduce  to  a  minimum  favoritism 
in  legislation. 

The  efficiency  with  which  the  Panama  Canal  has  been 
constructed  by  the  federal  government  has  been  used 
as  an  argument  for  state  control  of  all  great  enter- 
prises. As  a  study  of  executive  action  it  is  worth 
while  to  listen  to  the  comment  of  Sir  James  Bryce : 53 
"To  the  unbiased  observer  it  is  rather  an  instance  of 
the  efficiency  obtainable  by  vesting  full  administrative 
control  in  men  whose  uprightness  and  capacity  have 
been  already  proved  beyond  question,  who  have  not 
risen  by  political  methods,  and  who  have  nothing  to 
gain  by  any  misuse  of  their  powers.  So  far  as  any 
political  moral  can  be  drawn  from  the  case,  that  moral 
recommends  not  democratic  collectivism,  but  military 
autocracy."  All  efficient  executive  organization  must 
contain  the  element  of  military  discipline  and  system. 
Its  autocracy  must  be  within  the  law,  but  within  its 
proper  scope  a  certain  degree  of  autocracy  is  neces- 
sary. 

As  a  corollary  of  the  foregoing  we  may  conclude 

53  South  America,  p.   28. 


128  PUBLIC   HEALTH   ADMINISTRATION 

that  the  most  efficient  organization  is  one  in  which  the 
number  of  persons  engaged  in  the  higher  positions  is 
directly  proportional  to  the  number  of  their  subor- 
dinates; and  that  the  purely  ministerial  duties  should 
be  performed  chiefly  by  employees  of  the  lowest  rank. 
The  number  of  these  employees  should  be  the  small- 
est which  can  reasonably  accomplish  the  work  before 
them.  As  the  army  in  time  of  peace  is  only  a  skeleton 
organization  which  can  be  put  upon  a  war  strength 
by  increasing  the  number  of  enlisted  men,  so  a  govern- 
mental department  should  be  capable  of  expansion  or 
contraction,  according  to  circumstances,  by  increasing 
or  diminishing  the  number  of  clerks,  and  other  subor- 
dinates. Thus  a  state  department  of  health  should  be 
so  organized  that  in  case  of  an  epidemic,  like  that  of 
yellow  fever,  or  in  times  of  special  danger,  such  as 
that  during  and  after  a  flood,  with  the  least  possible 
delay  trained  forces  may  be  put  into  the  field  pre- 
pared to  safeguard  the  general  health.  Under  ordinary 
circumstances  every  member  of  the  service  should  have 
enough  to  do  to  keep  him  reasonably  busy.  In  the 
place  of  using  half  time  of  two  or  three  men  on  dif- 
ferent lines  of  work,  the  work  should  be  combined  in 
the  care  of  one.  Occasional  extra  work  should  be 
performed  by  an  assistant.  Efficiency  is  frequently 
weakened  in  governmental  offices  by  the  number  of 
persons  only  partially  employed. 


CHAPTER  V 


THE  JXJDICIAKY 


§  137.  Judiciary,    a    governmental  §  141.  No     appellate    power     over 
balance-wheel.  certain  executive  acts. 

§  138.  Individual      supremacy      of  §  142.  Executive  jurisdiction. 

branches.  §  143.  Departmental    adjudication. 

§  139.  Judicial  power  over  legisla-  §  144.  State  courts. 

tion.  §  145.  General  statement. 

§  140.  Judicial   power   over   execu- 
tives. 

§  137.  Judiciary,    a   governmental   balance    wheel. 

The  third  branch  of  the  government  is  the  judiciary. 
This  branch,  which  acts  as  a  balance  wheel  to  prevent 
excesses  by  the  other  branches,  is  frequently  misun- 
derstood, and  unjustly  criticised.  There  is  a  legal 
way  to  accomplish  desirable  ends,  and  there  are  often 
ways  which  are  not  legal.  Because  a  court  holds  a 
measure  illegal  is  no  reason  ordinarily  for  condemning 
the  court.  The  steps  taken  are  disapproved,  not  the 
idea.  Since  a  clear  understanding  of  this  point  will 
assist  in  the  efficiency  of  a  health  department  it  seems 
best  to  devote  a  little  space  to  the  aims  and  methods 
of  courts. 

In  all  constitutional  government  it  is  necessary  that 
some  body  be  selected  to  interpret  the  constitution  and 
statutes.  For  this  purpose  we  have  the  courts. 
Though,  especially  in  the  individual  states,  "the  ex- 
ecutive is  ill  organized  and  weak, ' '  the  courts  are  well 
organized.     The  lower  courts,  both  state  and  national. 

129 


130  PUBLIC   HEALTH  ADMINISTRATION 

have  for  their  province  the  determination  of  fact,  and 
the  application  of  the  law  to  the  fact.  The  chief  func- 
tion of  the  higher  courts  is  this  interpretation  of  law, 
and  to  prevent  misapplication  of  the  law  as  deter- 
mined. Because  of  this  function  we  sometimes  hear 
of  legislation  by  the  judiciary.  It  is  true  that  some- 
times the  effect  of  the  judicial  decision  is  to  negative 
the  will  of  the  people  as  expressed  in  a  statute,  or  to 
find  a  meaning  in  a  statute  which  was  not  contemplated 
by  the  drafters  of  the  act.  The  implication  of  the 
critics  is  that  the  courts  have  usurped  authority  over 
other  departments.  Unfortunately  judges  are  but 
human  beings,  and  like  other  members  of  the  human 
race  they  are  not  infallible.  Errors  may  occur,  but 
such  errors  will  generally  be  found  to  have  some  basis 
of  plausibility,  and  not  due  to  the  perverseness  of 
judicial  minds.  More  frequently  no  error  can  be  just- 
ly charged  to  the  courts.  Temporary  inconvenience, 
or  even  injury,  may  be  caused  by  the  judicial  deter- 
mination of  a  statute;  but  the  temporary  ill  is  more 
than  compensated  for  by  preventing  further  excess  of 
enthusiasm.  It  must  always  be  remembered  that  even 
the  Supreme  Court  of  the  United  States  is  not  per- 
mitted to  do  intentional  wrong.  Every  member  of 
that  Court  is  sworn  to  obey  the  Constitution,  and  if  he 
violate  his  oath,  or  if  he  use  his  high  position  for 
unworthy  ends,  he  is  subject  to  impeachment  and  re- 
moval by  the  Senate.  So  perfectly  is  the  government 
of  the  United  States  balanced  that  there  is  a  check 
upon  excess  of  authority  in  every  department.  There 
have  been  instances  when  personal  viewpoints  may 
have  biased  the  judgment  of  courts;  but  taken  together 
there  is  no  collection  of  writings  which  show  more 


THE   JUDICIARY  131 

clearly  the  dominance  of  reason,  than  do  the  decisions 
of  our  own  Supreme  Court.  Its  decisions  are  read, 
and  studied  by  lawyers  in  other  lands  for  guidance, 
just  as  we  study  the  decisions  in  the  courts  of  our 
English  cousins  across  the  ocean. 

§  138.  Individual  supremacy  of  branches.  It  is 
necessary  for  the  members  of  the  other  branches  of 
the  government  to  make  their  own  interpretations  of 
the  Constitution  and  statutes.  Some  have  claimed  that 
for  their  own  guidance  such  interpretation  must  be 
final,  and  that  the  judiciary  have  no  power  to  review 
such  conclusions,  or  to  punish  the  members  of  other 
branches  for  misinterpretations,  and  acts  done  under 
them.  Were  this  idea  accepted  by  the  nation,  the 
logical  result  would  be  that  in  the  place  of  a  perfectly 
balanced  government  of  three  branches,  we  should 
have  three,  possibly  conflicting  governments,  some- 
what dependent  upon  each  other  because  of  differing 
methods.  "A  house  divided  against  itself  cannot 
stand. ' '  Strange  as  it  may  seem,  this  independence  of 
each  branch  seemed  to  be  the  idea  of  Mr.  Jefferson. 
What  the  ultimate  result  of  such  a  theory  might  be  is 
shown  in  the  contention  of  Governor  Barstow  of  Wis- 
consin when  he  attempted  to  retain  his  position  as 
Governor,  in  spite  of  the  expressed  wish  of  the  voters 
to  the  contrary.  Certain  spurious  election  returns 
which  were  placed  on  file  with  the  State  Board  of  Can- 
vassers gave  him  an  apparent  majority.  He  therefore 
refused  to  surrender  the  office  to  his  successor,  and 
the  Attorney  General  filed  a  quo  warranto  in  the  su- 
preme court  of  the  state.  Barstow  denied  the  author- 
ity of  the  court  to  decide  and  consider  as  to  his  title 
to  office,  holding: 


132  PUBLIC   HEALTH  ADMINISTRATION 

"1.  The  three  departments  of  the  state  government, 
the  legislative,  the  executive,  and  judicial,  are  equal, 
co-ordinate,  and  independent  of  each  other;  and  that 
each  department  must  be  and  is  the  ultimate  judge  of 
the  election  and  qualifications  of  its  own  members, 
subject  only  to  impeachment  and  appeal  to  the  people. 

' '  2.  That  this  court  must  take  judicial  notice  of  who 
is  governor  of  this  state,  when  he  was  inaugurated, 
the  genuineness  of  his  signature,  etc.;  and  therefore 
cannot  hear  argument  or  evidence  upon  the  subject. 
That  who  is  rightfully  entitled  to  the  office  of  governor 
can  in  no  case  become  a  judicial  question,  and 

"3.  That  the  constitution  provides  no  means  for 
ousting  a  successful  usurper  of  either  of  the  three  de- 
partments of  the  government;  that  that  power  rests 
with  the  people,  to  be  exercised  by  them  when  they 
think  the  emergency  requires  it. ' ' x  Mr.  Barstow  ap- 
parently frankly  stated  that  only  a  popular  rebellion, 
and  recourse  to  mob  rule,  could  defeat  him  in  his 
usurpation  of  power.  Very  evidently,  such  an  appeal 
to  the  supremacy  of  brute  force,  to  craft,  and  chicanery, 
rather  than  to  reason,  does  not  appeal  to  the  student 
of  government.  The  duties  of  boards  of  election  can- 
vassers are  ministerial,  rather  than  judicial.2  While 
such  a  board  must  determine  that  the  returns  are  ap- 
parently in  due  form,  it  has  no  authority  to  go  back 
of  the  returns,  and  determine  as  to  fraud  or  illegal 
voting.3  It  is  true  that  according  to  the  Constitution 
of  the  United  States  as  well  as  those  of  the  individual 

i  Attorney   General   v.   Barstow,  Hill  (N.  Y.)  42;  People  v.  Pease, 

4  Wis.  587.  27  N.  Y.  45;  Morgan  v.  Quacken- 

2  Hudmon  v.  Slaughter,  70  Ala.  bush,  22  Barb.  72. 

546;   People  v.  VanSlyck,  4  Cow.  3  Throop,    Public    Officers,    156, 

(N.  Y.)   297;  Ex  parte  Heath,  3  with  cases  cited 


THE   JUDICIARY  133 

states,  each  legislative  house  is  made  a  judge  of  the 
qualification  of  its  own  members,  and  under  such  con- 
ditions the  courts  have  no  jurisdiction  over  the  ques- 
tion of  validity  of  senatorial  or  representative  election. 
§  139.  Judicial  power  over  legislation.  According 
to  a  general  rule  of  interpretation,  an  officer  with  dis- 
cretion "may  do  any  act  within  that  discretion;  and 
all  that  he  does  will  be  held  to  have  been  done  by  ex- 
press authorization  of  law."4  Consequently,  so  far 
as  a  legislative  body  does  not  exceed  the  limits  of  dis- 
cretion as  judged  by  the  constitutions  and  enactments 
under  which  it  works,  its  acts  are  not  subject  to 
judicial  review.  Congress  is  only  subject  to  the  fed- 
eral Constitution  in  its  limitations.  The  state  legis- 
latures are  subject  to  their  individual  state  constitu- 
tions, and  in  addition  to  the  limitations  which  may  be 
imposed  by  the  federal  Constitution  and  statutes.  A 
state  legislature  may  not  impose  war,  nor  restrict  in- 
terstate traffic,  for  those  matters  are  placed  by  the 
federal  Constitution  under  the  control  of  the  national 
government.  It  is  within  the  province  of  both  state 
and  federal  courts  to  determine  whether  or  not  a  state 
statute  has  invaded  the  province  of  the  federal  govern- 
ment. It  is  within  the  jurisdiction  of  the  federal  courts 
to  determine  whether  or  not  an  enactment  of  Congress 
has  violated  constitutional  provisions.  The  supreme 
courts  of  the  individual  states  are  the  final  interpreters 
of  the  constitutions  and  laws  of  their  states,  unless  it 
shall  appear  that  either  the  acts,  or  the  interpreta- 
tion, have  violated  provisions  of  the  federal  Constitu- 
tion.   It  therefore  happens  that  cases  arising  in  dif- 

*  Wyman,    Administrative   Law, 
83. 


134  PUBLIC   HEALTH   ADMINISTRATION 

ferent  states,  and  under  state  laws,  may  possibly  be 
decided  differently  in  the  federal  courts  though  the 
fundamental  facts  may  be  identical.  The  federal  Su- 
preme Court  will  not  declare  unconstitutional  a  state 
statute  which  violates  or  conflicts  with  the  constitution 
of  the  state,  but  not  with  that  of  the  United  States.5 
Because  it  is  within  their  discretion,  the  different  leg- 
islative bodies  are  the  final  authority  upon  the  neces- 
sity for  legislation  within  their  jurisdiction,  and  for  the 
advisability  of  the  measures  taken.  This  point  was 
most  clearly  stated  by  the  supreme  court  of  Illinois, 
in  People  v.  Dunne,  as  follows :5a  "No  more  baseless 
and  defenseless  proposition  could  be  put  into  words 
than  to  say  that  the  court  has  ever  arrogated  to  itself 
the  authority  to  pass  upon  the  wisdom  or  propriety 
of  either  executive  or  legislative  acts.  It  has  never 
assumed  to  declare  laws  valid  or  invalid  because  they 
were  wise  or  unwise,  or  because  they  tended  to  advance 
or  retard  social  justice,  individual  justice,  corrective 
justice,  or  any  other  variety  of  justice."  The  court 
concerns  itself  only  with  the  preservation  of  the  prin- 
ciples of  the  fundamental  law.  The  members  of  the 
court  may  not  coincide  with  the  legislators  as  to  the 
necessity  or  advisability  of  a  given  act,  nor  agree  with 
them  in  the  subject  matter  of  the  act,  but  unless  the 
act  be  unconstitutional — unless  it  violate  constitutional 
provisions,6  the  court  has  no  jurisdiction  in  the  matter. 
For  example,  a  legislature  may  pass  a  law  compelling 
all  citizens  to  be  vaccinated.  The  court  may  not  think 
such  legislation  necessary  or  advisable,  and  may  not 
believe  in  vaccination  as  a  protection  against  small- 

s  Calder  v.  Bull,  3  Dall  A.  386.         539;  Ives  v.  South  Buffalo  Ey.  Co., 
»»  258  111.  441.  201  N.  Y.  292 ;  People  v.  Bradley, 

•  McLean  v.  Arkansas,  211  U.  S.       207  N.  Y.  592. 


THE   JUDICIARY  135 

pox;  but  unless  either  the  terms  or  the  subject  be  in 
violation  of  the  constitution  the  court  must  approve. 
This  does  not  mean  that  even  the  legislature  has  an 
arbitrary  power.  "The  meaning  of  the  term  'discre- 
tionary/ when  granted  by  the  law  either  expressly  or 
by  implication,  in  connection  with  official  duty  is  that 
the  discretionaiy  decision  shall  be  the  outcome  of  ex- 
amination and  consideration.  In  other  words,  that  it 
shall  constitute  the  discharge  of  official  duty  and  not 
be  a  mere  expression  of  personal  will."7  If  the  act 
be  arbitrary  it  is  then  outside  of  discretion,  and  out- 
side of  the  authority  of  the  legislative  body,  and  under 
the  jurisdiction  of  the  court  to  be  set  aside. 

To  say  that  an  act  must  not  be  arbitrary  is  to  say 
that  it  must  be  reasonable  for  the  purpose  for  which 
it  was  enacted.  So  when  Texas  and  Missouri  enacted 
statutes  which  were  intended  to  prevent  the  spread  of 
the  Texas  cattle  fever,  by  prohibiting  importations  of 
cattle  from  the  infected  districts,  the  Supreme  Court  of 
the  United  States  upheld  one,  as  in  form  complying 
with  the  provisions  of  the  Constitution,  and  decided 
that  the  other  was  unreasonable  in  form,  and  an  in- 
terference with  interstate  traffic.8 

It  was  even  affirmed  by  the  court  in  one  case  that 
' '  We  need  not  inquire  whether  the  requirements  of  the 
statute  are  unjust  or  oppressive.  These  are  matters 
for  the  consideration  of  the  legislative  part  of  the  gov- 
ernment. We  may  observe  that  it  is  difficult  to  dis- 
cover oppression  or  injustice  in  requiring  the  medical 
profession  to  make  known  to  the  world  statistics  which 
may  promote  and  are  promoting  the  public  health."0 

t  U.  S.  v.  Douglas,  19  D.  C.  99.  » Robinson   v.   Hamilton,   14  N. 

»  Smith  v.  E.  B.  Co.,  181  U.  S.       W.  202. 
248;  E.  E.  Co.  v.  Husen,  5  Otto, 
465. 


136  PUBLIC   HEALTH   ADMINISTRATION 

The  court  went  on  to  say  that  the  law  does  not  require 
impossibilities,  but  that  physicians  should  honestly  at- 
tempt to  secure  the  necessary  information,  and  from 
the  context  we  may  understand  that  the  court  merely 
intended  to  say  that  it  would  not  interfere  with  legisla- 
tive discretion  where  possibly  some  relative,  and  minor 
injustice  might  be  caused  incidentally  by  the  opera- 
tion of  needed  requirements.  So  in  another  case  it  was 
held  that  if  the  real  design  of  an  ordinance  is  a  quar- 
antine regulation  to  guard  against  the  introduction  of 
disease,  a  court  will  not  undertake  to  determine 
whether  some  other  measure  interfering  less  with  com- 
merce could  not  as  well  have  accomplished  the  ob- 
ject.10 It  is  a  natural  consequence  in  the  enforcement 
of  many  police  requirements  that  they  will  rest  more 
heavily  upon  some  than  upon  others,  and  that  inno- 
cent parties  may  be  restrained  along  with  the  guilty 
for  the  general  good.  ' '  The  contention  that  the  ordi- 
nance (regulating  the  location  and  maintenance  of 
private  hospitals  and  sanitariums)  was  void  because 
it  was  admitted  that  it  was  enacted  at  the  solicitation 
of  persons  residing  in  the  vicinity  of  said  premises 
and  solely  in  their  behalf  as  a  local  and  special  regula- 
tion, is  answered  by  the  court's  saying  that  it  was 
not  permitted  to  inquire  into  the  motives  of  the  city 
council.  If  the  ordinance  was  valid  on  its  face,  the 
reasons  or  arguments  that  might  have  moved  the  city 
council  to  act  were  not  pertinent. ' '  " 

§  140.  Judicial  power  over  executives.  Since  an  ex- 
ecutive officer  derives  his  authority  either  from  a  con- 
stitution or  a  statute,  the  courts  have  the  same  juris- 

10  St.  Louis  v.  Boffinger,  19  Mo.  «  Shepard  t.   Seattle,   109   Pac. 

13.  1067. 


THE   JUDICIARY  137 

diction  over  his  acts  as  they  have  over  the  legislature, 
with  certain  additional  authority.  The  determination 
of  legality  of  executive  acts  is  not  limited  solely  by 
the  constitutional  restrictions.  Almost  all  executive 
acts  are  prescribed  by  statutes.  A  determination  of 
the  legality  of  executive  action  may  therefore  involve 
also  a  determination  as  to  legislative  authority,  by 
which  the  specified  acts  may  have  been  passed.  The 
statute  may  have  made  certain  duties  mandatory.  If 
so,  and  the  statute  is  lawful,  the  officer  must  do  just 
that  which  is  prescribed.  He  must  not  vary  therefrom 
either  by  excess  or  delinquence.  The  court  may  pass 
upon  his  right  to  the  office  which  he  claims,  and  may 
command  him  to  do,  or  not  to  do  specific  acts.  It  may 
hold  him  personally  responsible,  either  to  the  com- 
munity or  to  individuals,  for  variations  from  his  pre- 
scribed duty. 

If  the  executive  duties  be  vested  with  discretion, 
then  the  officer  may  do  anything  within  the  limits  of 
his  discretion.  Mandamus  will  not  lie  to  compel  such 
an  officer  to  do  a  certain  act.  Thus,  Oscar  Dunlop  ap- 
plied for  mandamus  to  compel  the  reissue  of  a  pension 
and  the  court  said : 12  "  The  Commissioner  of  Pen- 
sions did  not  refuse  to  act  or  decide.  He  did  act  and 
decide.  *  *  *  "We  have  no  appellate  power  over 
the  Commissioner,  and  no  right  to  reverse  his  deci- 
sion. That  decision  and  his  action  thereon  were  made 
and  done  in  the  exercise  of  his  official  function." 

§141.  No  appellate  power  over  certain  executive 
acts.  It  will  be  noticed  that  in  the  Dunlop  case,  just 
cited*  the  court  called  attention  to  the  fact  that  it  had 
no  appellate  power  over  the  decision  of  the  Commis- 

«  Dunlop  v.  Black,  108  U.  S.  40. 


J38  PUBLIC   HEALTH   ADMINISTRATION 

sioner.  (§  134.)  There  are  many  executive  procedures 
which  are  quasi- judicial  in  character.  Such  acts  may 
necessitate  something  like  court  procedure,  in  which 
the  opposing  parties  present  their  witnesses,  and  ques- 
tion and  cross-question  them  to  determine  the  facts. 
Over  these  questions  of  fact  the  decision  of  the  execu- 
tive may  be  final.13  "The  Land  Department  of  the 
United  States  is  administrative  in  its  character,  and  it 
has  been  frequently  held  by  this  Court  that  in  the  ad- 
ministration of  the  public  land  system  of  the  United 
States  questions  of  fact  are  for  the  consideration  and 
judgment  of  the  Land  Department,  and  its  judgment 
thereon  is  final. ' ' 14 

The  courts  may  very  properly  consider  whether  the 
executive  action  was  rightfully  performed.  Thus  in 
Low  Wah  Suey  v.  Backus,13  an  alien  prostitute  was 
ordered  deported  on  executive  hearing,  after  she  be- 
came a  citizen.  The  court  said  that  an  attack  on  the 
hearing  must  show  that  the  officers  hearing  them  were 
manifestly  unfair. 

Since  an  executive  has  only  such  powers  and  au- 
thority as  are  given  in  enactments,  the  court  may  ques- 
tion the  jurisdiction  of  the  executive.  In  speaking  of 
the  power  of  the  Postmaster  General  to  exclude  certain 
letters  from  the  mails,  the  court  said:  "His  right  to 
exclude  certain  letters  or  to  refuse  to  permit  their 
delivery  to  persons  addressed,  must  depend  upon  some 
law  of  Congress,  and  if  no  such  law  exist,  then  he  can- 

13  Nishimura  Ekiu  v.  U.  S.,  142  cago,  etc.,  E.  R.  Co.,  163  U.  S.  321 ; 

U.  S.  651,  659.  Johnson  v.  Drew,  171  U.  S.  93-99; 

i*Amer.   School  of  Mag.   Heal-  Gardner    v.    Bonestell,    180    V.    S. 

ing  v.   McAnnulty,  187  IT.   S.  94,  362. 
108 ;     citing    Burfenning    v.    Chi-  ls  225  U.  S.  460. 


THE    JUDICIARY  139 

not  exclude  or  refuse  to  deliver  thern."16  As  in  the 
case  of  legislation,  everything  which  is  done  within 
the  discretion  of  the  officer  will  be  held  as  legally  done, 
but  decisions  made,  and  opinions  formed,  must  show 
that  they  are  the  result  of  examination  and  considera- 
tion, and  not  be  expressions  of  personal  will  or  preju- 
dice.17 

Municipal  corporations  are  essentially  executive  in 
nature.  The  corporation  is  given  certain  powers  by 
the  state  statutes.  Anything  within  those  powers  it 
may  do.  Anything  without  those  powers  it  may  not 
do.18 

It  is  essential  that  in  the  administration  of  the  pub- 
lic health  a  certain  degree  of  liberty  be  given  to  the 
officers  of  health.  This  is  done  when  they  are  given 
discretion.  It  is  only  when  the  discretion  is  abused 
that  the  officer's  acts  are,  or  should  be,  subject  to 
judicial  review.  It  should,  then,  be  only  in  clear  cases 
of  such  abuse  that  the  court  should  be  willing  to  listen 
to  complaints.  To  subject  the  acts  of  health  officers 
to  judicial  review,  when  such  acts  were  within  the  dis- 
cretion accorded  by  the  constitution  or  statutes,  would 
very  frequently  defeat  the  very  object  sought — the 
protection  of  the  health  of  the  community.  If  the  offi- 
cer go  beyond  the  authority  granted — if  he  abuse  his 
discretion,  he  will  be  personally  liable  for  injuries  re- 
sulting. (§  271,  365,  366.)  This  matter  was  well  cov- 
ered by  the  New  Jersey  court,  when  it  said  that  it  was 
not  within  the  legislative  intent,  in  enacting  legisla- 
tion conferring  on  the  local  boards  of  health  the  power 
to  prescribe  quarantine  regulations  in  a  district  or 
locality  infected  with  a  contagious  disease,  to  subject 

16  Am.  Sch.  of  Mag.  Healing  v.  irU.  S.  v.  Douglas,  19  D.  C.  99. 

McAnnulty,    187    U.    S.    94,    109;  isLandberg  v.  Chicago,  237  111. 

Potts  v.  Breen,  167  111.  67.  112. 


140  PUBLIC   HEALTH   ADMINISTRATION 

the  discretion  of  suck  boards  to  the  review  of  the  local 
court  for  the  purpose  of  substituting  the  judgment  of 
such  tribunal  for  that  of  the  boards  to  which  the  power 
is  specifically  committed.  If  the  boards  of  health  so 
constituted  transcend  their  authority  in  a  given  case, 
the  act  itself  provides  a  remedy  to  the  party  aggrieved. 
The  court  is  unable  to  perceive  any  authority  in  the 
legislation  itself,  or  in  the  public  policy  on  which  it 
is  based,  which  can  be  said  to  contemplate  the  sub- 
mission to  a  legal  tribunal  of  the  public  necessity  which 
requires  in  an  emergency  the  prompt  and  expeditious 
intervention  of  a  board  to  which  the  legislature  has 
especially  committed  the  determination  of  the  facts, 
for  the  purpose  of  protecting  the  life  and  property  of 
a  community.  No  question  was  made  in  this  case  as 
to  the  conceded  power  of  a  proper  reviewing  tribunal 
to  pass  on  the  reasonableness  of  an  ordinance  or  a  res- 
olution passed  under  general  laws,  or  the  manner  of 
the  exercise  of  the  powers  therein  conferred.  That 
question  has  long  been  settled  in  the  affirmative  by  re- 
peated adjudications.  But  the  insistence  was  that  a 
tribunal  to  which  an  appeal  is  presumably  given  may, 
by  its  review  of  conditions  and  exigencies  in  a  trial 
anew,  determine  adversely  to  the  board  to  which  the 
power  has  been  specifically  committed,  by  legislative 
act,  that  its  exercise  in  any  given  case  was  unwar- 
ranted, and  that  its  discretion  was  improperly  exer- 
cised. The  court  finds  no  authority  in  the  act  for  such 
a  claim,  and  it  is  proper  to  assume  that,  if  the  legisla- 
ture intended  to  confer  such  power,  it  would  have 
found  expression  in  the  act.  The  statute  makes  pro- 
vision for  the  interposition  of  the  court  of  chancery 
under  certain  conditions,  and  it  defines  the  liability 


THE   JUDICIARY  141 

which  may  be  imposed  on  the  members  of  the  board 
by  reason  of  an  excessive  or  illegal  use  of  the  power 
conferred.  The  legislative  recital  of  these  remedies 
carries  with  it  a  certain  presumption  of  the  exclusion 
of  other  and  additional  remedies.  To  assume  that  the 
legislature  intended  to  confer  a  review  of  a  discretion- 
ary power  of  this  character,  vested  in  a  statutory 
board,  charged  with  its  exercise  in  critical  situations, 
involving  detriment  to  the  life  and  health  of  the  com- 
munity, is  tantamount  to  a  declaration  that  the  police 
power  of  the  state  is  moribund  and  useless.  It  will  not 
be  assumed,  therefore,  in  the  construction  of  such  a 
statute,  that  the  legislature  intended  to  defeat  its  own 
will  or  to  create  absurd  results  such  as  would  ensue 
under  such  conditions.19 

One  reason  why  the  dockets,  of  our  courts  are  over- 
crowded is  that  too  many  questions  of  an  executive 
nature  are  taken  before  them  for  settlement.  Par- 
ticularly in  matters  requiring  a  technical  knowledge, 
such  questions  may  be  much  more  intelligently  decided 
in  an  administrative  office.  By  statutory  enactment, 
therefore,  the  decision  of  such  departments  should  be 
final  on  questions  of  fact.  The  courts  should  limit 
their  review  of  the  cases  to  questions  of  law.  Even 
without  special  statutory  enactment  it  is  customary  for 
the  higher  courts  to  give  attention  to  the  questions  of 
law;  only  considering  evidence  so  far  as  it  may  have  a 
bearing  upon  the  legal  principles  involved.  When  it 
is  found  that  error  has  been  committed  by  the  lower 
court  the  case  is  returned  for  further  consideration. 

A  law  providing  that  proceedings  and  actions  of 

is  Board  of  Health  of  Cranford 
Township  v.  Court  of  Common 
Pleas,  85  At.  217. 


142  PUBLIC  HEALTH  ADMINISTRATION 

boards  of  health  shall  be  regarded  as  judicial,  and 
prima  facie  just  and  legal,  does  not  make  the  board  a 
court  whose  orders  are  final  and  conclusive.20  On  the 
other  hand,  we  sometimes  find  distinct  provisions  as  to 
appeals  from  the  action  of  boards  of  health.  Notice 
must  be  given  to  the  state  board  of  health  of  Massachu- 
setts of  an  appeal  from  an  order  of  that  board,  under 
Statutes,  1878,  Chap.  183,  Sec.  6.21  When  the  statutes 
creating  boards  of  health  invest  them  with  discretion- 
ary power  as  to  the  fixing  of  compensation  for  health 
officers,  no  appeal  lies  from  the  ordinances  of  the  county 
board  relative  to  amount  of  salary.22 

§  142.  Executive  jurisdiction.  When  the  act  of  an 
executive  officer  is  opposed  in  court,  it  is  the  first  duty 
of  the  officer  to  show  that  he  has  jurisdiction  over  the 
matter.  Failure  to  appreciate  this  point  has  caused 
disappointment  in  health  administration.  A  very 
competent  health  administrator  found  a  certain  meas- 
ure apparently  necessary  for  safeguarding  the  health 
of  his  municipality.  He  accordingly  secured  the  pas- 
sage of  an  ordinance  covering  the  point.  This  was  con- 
tested, and  finally  appealed  to  the  supreme  court  of 
the  state,  where  it  was  set  aside.  The  health  official 
felt  aggrieved  that  the  supreme  court  did  not  consider 
what  seemed  to  him  the  necessities  of  the  case.  It 
was  decided  upon  a  technicality.  The  fact  was  that  it 
was  not  shown  that  the  city  had  authority  and  juris- 
diction in  the  matter.  The  special  facts  were  there- 
fore not  before  the  court  properly.  The  court  could 
not  consider  these  special  facts.  Unless  jurisdiction 
be  shown,  the  executive  has  no  standing  in  court. 

20  Golden  v.  Health  Dept.,  New  22  Waller  v.  Wood,  101  Ind.  1U 
York,  47  N.  Y.  Supp.  623. 

21  Pebbles  v.  City  of  Boston,  131 
Maes.  197. 


THE   JUDICIARY  143 

Generally  speaking,  executive  jurisdiction  must  rest 
upon  enactment,  either  in  the  constitution  or  in  the 
statutes.  The  jurisdiction  may  be  very  limited.  It 
may  be  the  duty  of  an  officer  of  health  to  suppress  nui- 
sances, but  that  does  not  give  him  authority  to  deter- 
mine finally  either  what  are  nuisances,  nor  how  they 
shall  be  suppressed.  In  the  absence  of  specific  legis- 
lation he  must  appeal  to  the  courts  for  such  determina- 
tion. 

§  143.  Departmental  adjudication.  According  to 
the  provisions  of  the  national  pure  food  and  drugs  act, 
the  duty  of  enforcing  the  provisions  of  the  statute  de- 
volve upon  certain  executive  officers,  and  especially 
upon  the  Bureau  of  Chemistry  in  the  Department  of 
Agriculture.  The  determination  of  fact,  the  decision 
as  to  what  is  or  is  not  the  composition  of  a  certain 
article,  rests  with  that  Bureau.  "And  if  it  shall  ap- 
pear from  any  such  examination  that  any  of  such  speci- 
mens is  adulterated  or  misbranded  within  the  meaning 
of  this  Act,  the  Secretary  of  Agriculture  shall  cause 
notice  thereof  to  be  given  to  the  party  from  whom 
such  sample  was  obtained.  Any  party  so  notified 
shall  be  given  an  opportunity  to  be  heard,  under  such 
rules  and  regulations  as  may  be  prescribed  as  afore- 
said, and  if  it  appears  that  any  of  the  provisions  of 
this  Act  have  been  violated  by  such  party,  then  the 
Secretary  of  Agriculture  shall  at  once  certify  the  facts 
to  the  proper  United  States  district  attorney,  with  a 
copy  of  the  results  of  the  analysis  or  the  examination 
of  such  article  duly  authenticated  by  the  analyst  or 
officer  making  such  examination,  under  the  oath  of  such 
officer.     After  judgment  of  the  court,  notice  shall  be 


144  PUBLIC    HEALTH    ADMINISTRATION 

given  by  publication  in  such  manner  as  may  be  pre- 
scribed by  the  rules  and  regulations  aforesaid."28 

Just  why  it  is  made  mandatory  upon  the  Secretary 
of  Agriculture  to  report  these  cases  to  the  district  at- 
torney is  hardly  apparent.  Experience  demonstrates 
that  in  a  very  large  percentage  of  the  cases  there  is 
no  contest  in  the  court.  The  real  questions  here  in- 
volved are  chiefly  those  of  fact,  for  the  settlement  of 
which  those  specially  educated  are  better  qualified 
than  a  judge  or  an  untrained  jury  could  be.  It  is  true 
that  the  Fifth  Amendment  to  the  Constitution  prohib- 
its the  nation  from  depriving  a  person  of  life,  liberty, 
or  property  without  due  process  of  law;  but  a  notice 
and  an  opportunity  to  be  heard  are  the  essentials  in 
due  process  of  law.24  This  section  therefore  provides 
for  due  process  of  law,  the  notice  and  opportunity  to  be 
heard,  within  the  department.  When  there  is  no  ques- 
tion of  interpretation  of  law  involved,  neither  effi- 
ciency of  administration,  speediness  in  action,  nor 
justice  are  aided  by  the  red  tape  method  of  submitting 
all  of  these  cases  to  the  district  court.  There  is  a 
very  decided  loss  in  efficiency  of  administration,  and 
an  unnecessary  increase  in  cost  of  enforcing  the  pro- 
visions of  the  act.  Practically  it  requires  two  hear- 
ings when  one  would  be  sufficient.  Does  the  law  in- 
clude such  cases  as  the  presence  of  bacteria  in  milk? 
This  is  a  question  of  legal  interpretation,  and  as  such 
must  regularly  go  before  a  court.  Is  a  coffee  mis- 
branded  when  labeled  "Kio,"  though  it  comes  from 
Venezuela?    This  is  also  a  problem  in  construction  of 

23  Pure  Food  and  Drugs  Act,  249 ;  Garfield  v.  Allison,  211  U.  S. 
June  30,  1906,  Sec.  4.  264. 

z*  Garfield  v.  Goldsby,  211  U.  S. 


THE   JUDICIARY  145 

the  law,  and  as  such  must  go  to  the  court,  when  the 
party  interested  demands  it.  But  when  these  ques- 
tions of  construction  have  once  been  decided  by  the 
judiciary  future  cases  might,  did  the  statute  so  pro- 
vide, be  much  better  handled  by  the  executive  depart- 
ment alone.  Is  a  proprietary  medicine  misbranded 
when  it  states  upon  the  label  that  it  contains  no  mor- 
phine, but  examination  shows  that  it  does  contain  a 
very  appreciable  quantity  of  that  alkaloid?  This  is  a 
question  of  fact,  which  might  very  properly  be  de- 
cided by  the  executive  department.  The  ordinary 
judge  or  jury  knows  nothing  of  the  intricacies  of  chem- 
ical examination.  Venial  experts  may  easily  beguile 
such  an  uneducated  jury — uneducated  in  the  interpre- 
tation of  chemical  analysis,  into  the  belief  that  the 
competent  government  analysts  are  either  prejudiced 
or  incompetent.  It  is  said  that  the  expense  of  one  of 
these  prosecutions  was  over  a  million  of  dollars.  In  a 
similar  case,  originating  under  the  patent  laws,  the 
presiding  judge  was  unable  to  distingush  between  a 
process  of  manufacture  and  a  process  of  isolation  in 
chemistry.  He  called  attention  in  his  decision  to  the 
fact  that  a  court  so  constituted  was  beclouded  by  such 
technical  problems.25 

Inasmuch  as  prosecutions  under  such  an  act  as  the 
Food  and  Drug  Act  are  essentially  under  criminal  law, 
and  since  the  Sixth  and  Seventh  Amendments  to  the 
Constitution  preserve  the  right  to  trial  by  jury,  even 
in  executive  hearing  it  might  seem  best  and  possible 
to  preserve  this  feature,  by  providing  for  the  impanell- 
ing of  specially  qualified  experts  to  act  as  such  jurors. 

25  Parke  Davis  &  Co.  v.  Mulf ord 
Co.,  189  Fed.  Rep.  95,  115. 


146  PUBLIC    HEALTH    ADMINISTRATION 

Such  a  jury  would  be  able  to  get  its  evidence  much 
more  directly  than  the  ordinary  jury.  The  ordinary 
jury  must  depend  upon  the  relation  of  evidence  given 
by  one  who  obtained  the  direct  evidence.  The  real 
evidence  is  found  in  the  chemical  reactions,  and  in  the 
physiologic  tests.  Using  the  expression  in  a  nonliteral, 
and  amplified  signification,  the  narration  of  the  anal- 
ysts is  essentially  " hearsay"  in  character.  It  is  the 
only  evidence  which  the  usual  jury  can  understand, 
but  it  is  "secondhand,"  and  clearly  less  reliable  than 
the  direct  evidence  found  in  the  chemical  and  physio- 
logic tests.  The  jury,  not  witnesses,  should  be  experts 
in  such  cases,  to  the  end  that  justice  may  be  the  more 
sure  in  all  cases. 

To  put  the  same  proposition  in  another  way;  all 
would  agree  that  a  deaf  mute  should  be  barred  from 
jury  duty  for  cause.  He  could  not  understand  the  evi- 
dence, unless  all  that  evidence  be  given  in  the  language 
of  mutes.  So  too  a  Eussian  who  is  ignorant  of  the 
English  language  might  properly  be  excluded  from 
jury  duty  in  a  court  where  all  the  transactions  are  in 
English.  Such  men  are  incompetent  as  jurymen  be- 
cause they  do  not  understand  the  language,  and  are 
therefore  obliged  to  depend  upon  the  interpretation 
and  ideas  of  others,  rather  than  to  form  their  own 
judgment.  The  man  who  is  not  educated  in  chemistry 
does  not  understand  the  language  of  chemistry.  He 
is  dependent  upon  the  expert  interpretation  of  facts 
for  his  opinion,  and  for  his  decision.  When  the  ex- 
perts disagree  he  does  not  really  decide  the  real  ques- 
tion at  issue — he  simply  decides  which  man's  opinion 
he  will  accept  as  his  own.  His  real  decision  is  as  to  the 
relative  reliabilitv  of  two  men  in  a  line  of  work  to 


THE   JUDICIARY  147 

which  he  is  a  stranger.  The  witness  should  be  limited 
to  a  statement  of  facts.  He  should  state  that  under 
certain  conditions  stated  given  results  followed  under 
his  observation.  When  he  adds  that  in  his  opinion 
those  results  indicate  certain  facts  he  is  assuming  to 
judge  of  facts  which  it  is  the  proper  function  of  the 
jury  to  determine.  His  interpretation  of  results  should 
be  considered  simply  as  confirmatory  evidence  of  his 
other  statements. 

§  144.  State  courts.  According  to  the  decisions  of 
the  United  States  Supreme  Court,  and  of  many  state 
courts,  the  first  ten  amendments  to  the  federal  Consti- 
tution are  interpreted  as  limitations  only  upon  the  fed- 
eral government.26  It  is  quite  customary,  however, 
for  state  constitutions  to  offer  similar  provisions,  so 
that  the  general  discussion  relative  to  national  govern- 
mental procedures  applies,  with  some  individual  ex- 
ceptions, to  the  methods  used  in  the  individual  states. 

§  145.  General  statement.  It  is,  therefore,  the  chief 
duty  of  the  courts  to  determine  points  of  legal  inter- 
pretation. In  an  orderly  consideration  of  every  prob- 
lem the  construction  of  the  applicable  clauses  of  con- 
stitutions and  statutes  must  precede  any  study  of  pe- 
culiar facts  pertaining  to  the  case.  This  is  not  only 
the  logical  approach  to  the  solution,  but  it  is  in  the 
interest  of  ultimate  justice.  Individuals  should  be  un- 
known to  the  court.  Its  opinions  should  be  unbiased 
by  any  possible  personalities  and  sympathies.  The 
personal  appeal,  and  the  sympathy  dodge  before  a 
jury  are  frequent  causes  for  miscarriage  of  justice. 

28  Barron  v.  Baltimore,  7  Peters,       Cow.     686 ;     James     v.     Common- 
243;    Murphy  v.    People,    2    Cow.       wealth,  12  S.  &  E.  (Pa.)  220. 
(N.  Y.)  815;  Barker  v.  People,  3 


148  PUBLIC    HEALTH   ADMINISTRATION 

If,  therefore,  a  case  before  the  court  began  with  the 
individual  particulars,  the  tendency  would  be  for  the 
partizanship,  which  might  be  generated  in  spite  of 
intention  to  the  contrary,  to  overrule  reason.  On  the 
other  hand,  in  the  orderly  investigation  of  a  problem 
it  not  seldom  happens  that  the  case  is  decided  before 
the  particulars  of  that  individual  case  can  be  consid- 
ered. That  being  true,  there  is  no  longer  occasion  for 
taking  up  the  time  of  the  court  with  further  inves- 
tigation. 


CHAPTER  VI 


POLICE  POWER — NATURE  OF,  AND  METHODS 


{146, 

§147 
§148, 
§149 
§150, 

§151, 


§152, 
§153, 

§154, 

§155, 
§156, 


§157, 
§158. 
§159, 


CHAPTER  VI  §  160. 

Health   authority   based    on 

Police  Power.  §  161. 

Police  or  police  power.  §  162. 

Police  power   defined. 

Characteristics.  §  163. 

Distinguished  from  criminal 

punishment.  §  164. 

An  expression  of  social,  eco-      §  165. 
nomic,   and  political  con- 
ditions. 

Alienum  non  laedat.  §  166. 

Police  power  superior  to  in- 
dividual rights. 

Statutes      dependent      upon      §  167. 
police  power. 

Cannot  be  alienated.  §  168. 

Police  power  of  state  may 
be    superior    to    congres- 
sional supervision  of  com-       §  169. 
merce. 

A   dangerous  power.  §  170. 

Summary   executive   action.        §  171. 

Discretion  may  not   be   co-       §  172. 
erced. 


Courts  feeble  to  resist  acta 
under  discretion. 

Statutory  action. 

Judicial  determination  un- 
der police   power. 

Efficiency  increased  by  defi- 
niteness  of  enactment. 

Variety  of  methods. 

Disadvantages  in  adminis- 
tration through  enact- 
ment. 

Legislation  should  be  man- 
datory only  when  based 
on  settled  facts. 

Administrative  action  spe- 
cific;  legislative,  general. 

Public  health  portion  of 
police  power  includes 
what? 

Regulation  versus  prohibi- 
tion. 

Reasonableness. 

Extreme  use  of  police  power. 

Extreme  use  must  be  clearly 
necessary. 


§  146.  Health  authority  based  on  police  power.  Ref- 
erence was  made  in  a  previous  chapter  to  "police 
power/ '  Since  all  authority  in  the  preservation  of 
public  health  is  derived  from  that  power,  and  since 
its  nature  and  methods  are  frequently  misunderstood, 
it  is  necessary  to  consider  the  subject  more  carefully. 

149 


150  PUBLIC    HEALTH    ADMINISTRATION 

Because  the  exercise  of  this  power  may  often  be  un- 
supported by  statutory  enactment,  and  dependent  ap- 
parently only  upon  the  command  of  some  executive 
officer,  the  term  has  sometimes  been  used  as  synony- 
mous with  the  expression  "arbitrary  power."  Police 
power  must  never  be  arbitrarily  exercised.  Arbitrari- 
ness implies  action  of  will,  rather  than  of  reason.  The 
use  of  this  power  must  always  be  clearly  dependent 
upon  reason.  Need  must  be  evident,  and  the  method 
of  execution  must  be  dictated  by  the  necessities  of  the 
case.  Neither  is  the  power  necessarily  dependent 
upon  the  executive.  The  order  may  originate  from 
the  legislature,  and  the  warrant  for  enactment  must 
be  found  in  this  power. 

§  147.  Police  or  police  power.  Modern  writers 
make  a  distinction  between  "police"  and  "police 
power."  Formerly  this  distinction  was  not  so  prom- 
inent. Jeremy  Bentham  denned  police  as  1  "A  system 
of  precaution,  either  for  the  prevention  of  crimes  or 
calamities.  Its  business  may  be  distributed  into  eight 
distinct  branches:  1.  Police  for  the  prevention  of  of- 
fences; 2.  Police  for  the  prevention  of  calamities;  3. 
Police  for  the  prevention  of  endemic  diseases;  4. 
Police  of  charity;  5.  Police  of  internal  communica- 
tions; 6.  Police  of  public  amusements;  7.  Police  for 
recent  intelligence;  8.  Police  for  registration." 

Blackstone  defines2  police  as  "the  due  regulation 
and  domestic  order  of  the  kingdom,  whereby  the  indi- 
viduals of  the  state,  like  the  members  of  a  well  gov- 
erned family,  are  bound  to  conform  their  general  be- 
havior to  the  rules  of  propriety,  good  neighborhood, 

i  Works,    Edinburgh    Ed.,    Part  2  Blackstone 's         Commentaries, 

IX,  p.  157.  IV,  162. 


POLICE  POWER — NATURE  OP,  AND   METHODS  151 

and  good  manners,  and  to  be  decent,  industrious,  and 
inoffensive  in  their  respective  stations."  Police,  then, 
"  means  at  the  same  time  a  power  and  a  function  of 
government,  a  system  of  rules,  and  an  administrative 
organization  and  force."3 

Originally  the  word  police  referred  to  all  the  opera- 
tions of  government.  Later  it  came  to  be  used  only 
with  reference  to  internal  administration.  Today  it 
has  come  to  be  limited  to  that  part  of  governmental 
administration  which  attempts  to  prevent  the  happen- 
ing of  evil,  and  to  the  suppression  of  violations  of 
law.4  Because  the  peculiar  matters  with  which  this 
power  and  function  have  to  deal  were  found  chiefly 
within  the  municipalities,  this  term,  derived  from  the 
Greek  word  for  city,  was  limited  in  its  application  to 
municipal  action.  Today  it  is  recognized  as  a  function 
of  the  state.  It  includes  all  acts,  whether  legislative, 
or  executive,  which  have  for  their  object  the  preven- 
tion of  harm  to  the  community,  or  to  its  individual 
members. 

§148.  Police  power  defined.  Police  power  is  more 
limited  in  application,  and  refers  to  that  authority  of 
government  which  is  necessary  for  its  preservation. 
"This  extraordinary  and  dangerous  power  is  not  of 
constitutional  origin  or  grant.  It  is  institutional,  and 
inherent  in  government;  and,  as  wisely  remarked  by 
Chief  Justice  Shaw,  'it  is  much  easier  to  perceive  and 
realize  the  existence  and  source  of  this  power  than  to 
mark  its  boundaries,  or  prescribe  limits  to  its  exer- 
cise.'    *     *     *     When  exercised  by  due  process  of 

s  Freund.  Police  Power,  Sec.  2. 
*  Goodnow.     Municipal     Govern- 
ment, p.  2-4 


152  PUBLIC  HEALTH  ADMINISTRATION 

law,  as  in  abatement  of  nuisances  through  civil  or 
criminal  proceeding,  this  power  is  usually  found  to  be 
wholesome  and  beneficial.  Its  summary  exercise  is 
always  perilous  to  private  right,  and  often  cruelly  un- 
just; as  when  in  emergency,  apparent  or  real,  the 
property  of  someone  is  sacrificed  for  the  protection  of 
others,  or  one  is  deprived  of  his  personal  liberty  for 
the  supposed  safety  of  the  many. ' ' 5 

§149.  Characteristics.  The  distinctive  characteris- 
tics of  police  power  are  that ' '  it  aims  directly  to  secure 
and  promote  the  public  welfare,  and  it  does  so  by 
restraint  and  compulsion. ' ' 6  Though  taxation  has 
often  a  restraining  influence,  the  taxing  power  is  quite 
distinct  from  police  power.  One  of  the  measures  used 
in  taxation  is  the  requirement  of  a  license,  and  a 
license  is  also  one  of  the  aids  in  the  exercise  of  the 
police  power,  but  these  two  forms  of  license  are  quite 
distinct,  and  upon  this  distinction  the  courts  may  base 
their  decision  as  to  the  constitutionality  of  legislation. 
For  the  purpose  of  taxation  the  license  requirements 
must  not  be  prohibitive  or  restrictive.  For  the  exer- 
cise of  police  power  the  tax  levied  may  be  so  great  as 
to  have  such  restrictive  or  prohibitive  effect.  Thus  a 
tax  of  one  thousand  dollars  annually  would  probably 
be  deemed  unconstitutional  upon  a  dealer  in  meats  or 
groceries,  while  it  would  be  upheld  as  against  his 
neighbor  who  is  engaged  in  the  liquor  business.  In 
the  one  case  the  object  of  the  tax  would  be  revenue; 
in  the  other,  restriction  and  regulation  of  the  traffic. 
Again,  even  in  police  power,  the  tax  may  be  essen- 
tially distinct  from  the  license.   The  power  to  require 

s  Ingersoll,  Public  Corporations,  6  Freund,  Police  Power,  3. 

115. 


POLICE  POWER — NATURE  OP,  AND   METHODS  153 

a  license  from  a  milk  dealer  is  essentially  police  in 
nature.  It  is  for  the  purpose  of  registration,  and  as 
an  aid  in  the  supervision  of  the  sanitary  conduct  of 
the  business.  Not  only  is  it  useful  for  supervisory  pur- 
poses, but  it  is  a  potent  aid  in  the  enforcement  of  rules 
and  regulations  adopted  for  insuring  a  pure  supply  of 
that  widely  used  article  of  food.  In  such  a  case  the  tax 
must  not  be  sufficiently  large  to  restrict  the  trade. 
It  is  levied  to  pay  a  reasonable  proportion  of  the  work 
of  issuing  the  license,  and  of  supervising  the  trade. 
It  must  be  the  fact  of  license,  rather  than  the  amount 
of  the  license  fee  which  will  serve  to  restrict  the  busi- 
ness within  reasonable  limits. 

§  150.  Distinguished  from  criminal  punishment.  In 
a  similar  manner  we  find  a  distinction  between  crim- 
inal legislation,  and  the  legislation  of  police  power. 
' '  The  peculiar  province  of  the  criminal  law  is  the  pun- 
ishment of  acts  intrinsically  vicious,  evil,  and  con- 
demned by  social  sentiment;  the  province  of  the  po- 
lice power  is  the  enforcement  of  merely  conventional 
restraints,  so  that  in  the  absence  of  positive  legisla- 
tive action,  there  would  be  no  possible  offense. ' ' 7  We 
find,  then,  that  "the  range  of  the  internal  police  is 
wider  than  police  power."8  Sterilization  has  been 
provided  for  by  the  laws  of  several  states  in  the  cases 
of  criminals,  imbeciles,  epileptics,  and  other  defectives. 
Mental  defectiveness  may  be  transmitted  through 
heredity,  and  the  police  power  of  the  state  would  there- 
fore perhaps  authorize  such  an  extreme  measure  to 
prevent  the  possibility  of  offspring  who  would  become 
public  charges.  Criminality  is  not  demonstrably  her- 
editary.   The  police  power,  therefore,  would  not  au- 

7  Freund,  Police  Power,  26.  8  Freund,  op.  cit.  23. 


154  PUBLIC    HEALTH    ADMINISTRATION 

thorize  such  a  statute  in  the  case  of  criminals.  If  the 
sterilization  of  criminals  be  provided,  it  must  be  con- 
sidered as  a  part  of  criminal  punishment.  These  two 
illustrations  of  the  same  act  show  a  difference  between 
the  operations  of  the  criminal  law  and  of  police  power. 
(See  Chap.  XX.) 

§  151.  An  expression  of  social,  economic,  and  politi- 
cal conditions.  Although  the  use  of  the  term  police 
power  has  become  of  more  limited  application  than 
formerly,  it  by  no  means  implies  that  the  essential 
power  is  more  limited,  nor  that  its  use  is  more  re- 
stricted than  formerly.  On  the  contrary,  with  the  in- 
crease of  civilization  this  power  is  used  in  more  direc- 
tions, and  with  a  multitude  of  agencies  and  methods. 
Police  power  is  not  a  fixed  quantity,  but  it  is  the  ex- 
pression of  social,  economic,  and  political  conditions. 
"As  long  as  these  conditions  vary,  the  police  power 
must  continue  to  be  elastic,  i.  e.,  capable  of  develop- 
ment. ' ' 9 

§  152.  Alienum  non  laedat.  The  police  power  of  a 
state  includes  the  protection  of  the  lives,  limbs,  health, 
comfort,  and  quiet  of  all  persons,  and  the  protection  of 
property  within  the  bounds  of  the  commonwealth.  Pro- 
tection of  property,  for  example,  does  not  imply  that 
the  owner  may  at  all  times,  and  in  all  places  use  his 
possessions  according  to  his  own  will  and  pleasure. 
It  is  a  principle  of  the  common  law  "sic  utere  tuo  ut 
alienum  non  laedas."  This  maxim  is  at  the  base  of 
the  police  power  of  governmental  action — one  may  so 
use  his  property  that  it  shall  work  no  injury  to  others. 
How  the  operations  of  the  power  may  vary  according 
to  circumstances  may  be  seen  from  a  few  illustrations. 

A  man  upon  a  farm,  far  away  from  other  property, 

s  Freund,  Police  Power,  3. 


POLICE   POWER — NATURE   OF,    AND    METHODS  155 

may  if  he  choose,  burn  an  old  and  useless  building. 
Perhaps  its  preservation  might  injure  himself,  or  his 
family,  as  for  example,  if  the  structure  were  in  dan- 
ger of  falling,  or  were  infected  with  vermin.  Within 
a  crowded  city  the  burning  of  the  building  would  en- 
danger the  houses  of  his  neighbors,  and  it  would 
clearly  violate  the  maxim.  It  is  evidently  within  the 
province  of  the  police  under  such  circumstances  to 
prevent  this  use  by  the  owner.  Again:  the  isolated 
farmer,  or  his  family,  afflicted  with  an  infectious  dis- 
ease, might  be  permitted  to  continue  his  work  unmo- 
lested. In  the  city,  though  the  afflicted  family  remain 
upon  their  premises,  as  on  the  porch,  and  though  the 
outside  air  might  be  beneficial  to  the  patients,  such 
freedom  of  motion  might  endanger  the  health  and 
lives  of  others,  and  police  power  must  restrain  the 
liberty  of  the  individual.  Or  again:  the  increase  in 
our  knowledge  changes  our  use  of  the  power.  There 
is  no  restriction  as  to  the  right  of  a  man  to  sell  his 
farm  products,  so  long  as  he  does  not  thereby  endan- 
ger others.  The  relationship  of  typhoid  fever,  or  of 
diphtheria  to  milk  was  not  formerly  known.  Now  that 
the  diseases  are  known  to  be  the  product  of  recogniza- 
ble germs,  and  that  those  germs  propagate  freely  in 
milk,  new  dangers  are  recognized.  Formerly  malaria 
was  supposed  to  be  due  to  aerial  conditions.  Now  we 
know  that  it  is  an  infectious  disease,  spread  through 
the  agency  of  one  family  of  mosquitoes.  Any  quaran- 
tine of  the  disease  would  formerly  have  been  deemed 
unreasonable,  and  unlawful.  Today  it  is  a  recognized 
duty  of  a  health  department  under  police  power  to 
restrict  the  disease;  but  quarantine  would  not  be  jus- 
tifiable in  a  district  which  is  free  from  the  anopheline 
mosquitoes. 


156  PUBLIC    HEALTH   ADMINISTRATION 

§  153.  Police  power  superior  to  individual  rights. 

Therefore :  ' '  The  maxim  of  this  power  is  that  every 
individual  must  submit  to  such  restraints  in  the  exer- 
cise of  his  liberty  or  of  his  property  as  may  be  re- 
quired to  remove  or  reduce  the  danger  of  the  abuse 
of  those  rights  on  the  part  of  those  who  are  unskill- 
ful, careless,  or  unscrupulous."10  As  Chief  Justice 
Shaw  has  said:11  "Every  holder  of  property,  how- 
ever absolute  may  be  his  title,  holds  it  under  the  im- 
plied liability  that  his  use  of  it  shall  not  be  injurious 
to  the  equal  enjoyment  of  others  having  an  equal  en- 
joyment of  their  property,  nor  injurious  to  the  rights 
of  the  community." 

Ordinarily  private  property  may  not  be  taken,  nor 
destroyed,  without  due  compensation.12  Under  police 
power  such  use,  or  destruction  may  be  permitted,  as 
when  a  building  is  destroyed  to  prevent  the  spread  of 
a  conflagration.13  Ordinarily  private  individuals  may 
not  be  pressed  into  public  service,  especially  without 
compensation ; 14  but  in  the  case  of  a  flood,  or  at  the 
time  of  a  conflagration,  since  the  duty  is  general  it  is 
held  that  no  compensation  is  due.15  So  also  private 
land  may  be  taken  for  the  building  of  needful  embank- 
ments, without  compensation.16 

§154.  Statutes  dependent  upon  police  power.    As 

io  Freund,  Police  Power,  8.  15  Sears  v.   Gallatin  County,   20 

ii  Commonwealth     v.     Alger,     7  Mont.  462. 

Cush.  84.  I6  Bass  v.  State,  34  La.  Ann.  494 ; 

12  Mitchell  v.  Harmony,  13  How.  Euch  v.  New  Orleans,  43  La.  Ann. 

115.  275;  Peart  v.  Meeker,  45  La.  Ann. 

is  Case  of  Prerogative,  12  Pep.  421;    Egan  v.  Hart,  45  La.  Ann. 

12:    Mouse's    case,    12    Pep.    63.  1358;    Eldridge  v.   Trezevant,   160 

Freund,  Police  Power,  534.  TJ.  S.  452. 

"Penrice    v.    Wallis,    37    Miss. 
172. 


POLICE   POWER — NATURE   OF,   AND    METHODS  157 

previously  stated,  police  power  may  be  exercised  un- 
der statutory  enactment.  Such  enactment  may  serve 
the  purpose  of  due  process  of  law,  and  very  greatly 
aid  in  clear  cases  of  the  use  of  this  power.  Very  often 
statutory  enactment  is  impossible,  and  the  steps  taken 
are  upon  the  verbal  command  of  an  executive  officer, 
and  without  any  semblance  of  attempt  at  complying 
with  due  process  of  law.  At  other  times,  the  work  is 
intermediate  between  these  two  extremes  and  due 
process  is  preserved  by  court  action. 

§155.  Cannot  be  alienated.  This  exceedingly  im- 
portant power,  being  an  inherent  element  of  govern- 
ment, cannot  be  alienated.  "Neither  the  legislature 
of  a  state  nor  a  municipal  corporation  can  surrender, 
bargain  away,  or  otherwise  divest  itself  of  the  police 
power,  by  non-user  or  by  any  grant,  contract,  or  con- 
cession."17 From  the  foregoing  it  follows  that  this 
power  may  override  those  provisions  of  the  Constitu- 
tion which  guard  the  sanctity  of  contracts,18  freedom 
of  person,  due  process  of  law,  and  property  rights. 
In  the  latter  case  police  power  goes  beyond  eminent 
domain,  in  that  the  taking  of  property  under  eminent 
domain  requires  compensation,  but  real  or  personal 
property  may  be  taken  under  police  power,  either  for 
use,  or  for  destruction,  without  any  compensation  to 

17  Black's     Constitutional     Law,  Petersburg  Aqueduct  Co.,  102  Va. 

151,    citing    Boston    Beer    Co.    v.  654. 

Mass.,  97  U.  S.  25;  Stone  v.  Mis-  is  Boston  Beer  Co.  v.  Massachu- 
sissippi,  101  U.  S.  814;  Shreveport  setts,  97  U.  S.  25;  Stone  v.  Mis- 
Traction  Co.  v.  City  of  Shreveport,  sissippi,  101  U.  S.  814;  Boyd  v. 
122  La.  Ann.  1;  State  v.  St.  Paul,  Alabama,  94  U.  S.  645;  Butchers' 
M.  &  M.  E.  E.  Co.,  98  Minn.  380;  Union  Slaughterhouse  v.  Crescent 
State  v.  Murphy,  130  Mo.  10;  C,  City  Live  Stock  Land  Ins.  Co.,  Ill 
St.  P.,  M.  &  O.  E.  Co.  v.  Douglas  TJ.  S.  746;  Kreser  v.  Lyman,  74 
Co.,   134  Wis.   197;    Petersburg  v.  Fed.  765. 


158  PUBLIC    HEALTH    ADMINISTRATION 

the  owner.  It  is  true  that  such  use  of  the  power  is 
not  common,  and  may  impose  a  moral  obligation  for 
compensation,  but  in  many  cases  there  is  no  legal  pro- 
tection for  the  individual. 

§  156.  Police  power  of  state  may  be  superior  to  con- 
gressional supervision  of  commerce.  Though  by  the 
Constitution  the  sole  power  to  regulate  interstate  com- 
merce rests  in  Congress,  the  police  power  of  the  indi- 
vidual states  knows  no  such  boundary.  For  purposes 
of  health  the  state  may  sometimes  use  its  police  power 
as  superior  to  the  regulation  of  commerce.19  This  is 
a  legal  use  of  the  power  of  the  state  even  when  it 
serves  to  stop  navigation,20  or  interferes  with  the 
operation  of  a  treaty  made  by  the  United  States  with 
a  foreign  nation.21 

§  157.  A  dangerous  power.  Because  of  the  very 
great  danger  which  this  power  threatens  to  individual 
liberty,  because  of  the  fact  that  it  places  in  jeopardy 
private  property,  and  because  it  offers  an  almost  un- 
bounded field  for  spoliation,  it  is  indeed  a  dangerous 
power.  It  is  therefore  necessary,  for  the  purposes  of 
good  government,  that  its  use  be  so  hedged  about  as 
to  preserve  its  efficiency,  while  lessening  the  possibili- 
ties for  its  abuse.    Is  this  possible? 

§  158.  Summary  executive  action.  There  are  those 
who  think  that  the  health  official  should  have  the  wid- 
est possible  discretion  with  authority.  They  would 
have  him  supreme,  unhampered  by  legislature,  other 

is  Smith  v.  St.  Louis  &  South-  21  Compagnie  Francaise  de  Navi- 

western  Ey.  Co.,  181  U.  S.  248.  gation  a  Vapeur  v.  Louisiana,  186 

20  Leovy  v.  U.  S.,  177  U.  S.  621;       II.  S.  380. 
Wilson  v.  Blackbird  Creek  Co.,   2 
Pet.  245;  Oilman  v.  Philadelphia,  3 
Wall.  713. 


POLICE   POWER — NATURE   OF.    AND    METHODS  159 

executive  officers,  or  even  by  the  courts.  Unfortunate- 
ly, this  would  not  only  give  power  for  good  to  the 
conscientious  and  efficient  officer,  but  it  would  remove 
checks  from  the  dishonest  man,  and  would  put  great 
power  for  evil  into  the  hands  of  the  ignorant  and  in- 
competent public  servant.  The  natural  tendency 
would  be,  as  even  now  it  sometimes  seems,  that  health 
departments  would  be  filled  by  unscrupulous  politi- 
cians, rather  than  by  experts  trained  in  the  saving  of 
human  life.  It  has  often  happened  that  in  the  past 
a  zealous,  but  unwise  health  officer  has  worked  great 
injury  to  private  individuals,  and  exposed  the  munici- 
pality to  needless  litigation;  or  one  less  honest  has  used 
his  position  for  private  gain  to  the  detriment  of  the 
people  whom  he  was  supposed  to  serve.  "If  an  offi- 
cer has  discretion  he  may  do  any  act  within  that  dis- 
cretion, and  all  that  he  does  will  be  held  to  have  been 
done  with  express  authorization  of  law. ' ' 22  It  is  true 
that  even  if  the  officer  has  discretion,  his  act  must  not 
be  arbitrary.  "The  meaning  of  the  term  *  discretion- 
ary,' when  granted  by  the  law  either  expressly,  or  by 
implication,  in  connection  with  official  duty,  is  that  the 
discretionary  decision  shall  be  the  outcome  of  exam- 
ination and  consideration.  In  other  words,  that  it 
shall  constitute  the  discharge  of  official  duty,  and  not 
be  a  mere  expression  of  personal  will.23  It  is  also  true 
that  an  officer  is  amenable  for  the  abuse  of  his  power 
of  discretion.24  "If  that  officer,  it  may  be  proved,  has 
deviated  ever  so  little  from  his  legal  authority,  if  with 
the  best  of  intelligence,  he  makes  a  mistake  of  law  in 
interpreting  his  powers,  or  if  he  makes  a  mistake  of 
fact  in  applying  the  law  to  a  particular  case,  he  is  by 

22  Wyman,  Administrative  Law,  23  u.  S.  v.  Douglas,  19  D.  C.  99. 

83.  2*  State  v.  Yopp,  97  N.  C.  478. 


160  PUBLIC    HEALTH    ADMINISTRATION 

the  principal  doctrine,  if  applied  to  its  logical  conclu- 
sion, liable  as  a  private  wrong  doer,  and  responsible  in 
such  damages  as  may  be  proved."25  "The  criminal 
law  regards  as  a  crime  almost  every  act  of  an  officer 
which,  if  committed  by  an  individual,  would  be  a 
crime."26  But,  "In  the  case  of  officers  acting  with 
discretion,  the  act  to  be  punished  criminally  must  be 
willful  and  corrupt. " 27  In  all  such  cases  the  presump- 
tion must  be  that  the  officer  has  acted  within  his  dis- 
cretion unless  it  is  clearly  shown  that  he  has  not.  There 
must  be  clear  evidence  of  abuse  of  the  power,  and  the 
burden  of  proof  is  upon  the  complainant.  Any  other 
condition  would  paralyze  administration.28 

§  159.  Discretion  may  not  be  coerced.  On  the  other 
hand,  if  the  discretion  be  left  entirely  to  the  adminis- 
trative officer  there  is  no  way  in  which  he  can  be 
forced  to  act.  (§§  271,  274.)  Mandamus  can  not  lie 
against  an  officer  who  is  acting  under  discretion.  "We 
have  no  power  to  compel  either  of  the  departments  of 
government  to  perform  any  duty  which  the  constitu- 
tion or  the  law  may  impose  upon  them,  no  matter  how 
palpable  such  duty  may  be."29  "It  is  also  held  that 
an  officer  is  not  liable  to  a  private  action  for  neglect 
of  an  exclusively  public  duty,  even  to  a  person  spe- 
cially injured  thereby,  and  in  some  cases  even  though 
the  act  was  unlawful  and  malicious. ' ' 30 


25  Wyman,  Administrative  Law,  28  Durand  v.  Hollings,  4  Batch. 
15.  451. 

26  Goodnow,  Principles  of  Ad-  29  People  v.  Bissel,  19  111.  232 ; 
ministrative  Law,  298,  citing  Pennoyer  v.  McConnaughy,  140  U. 
Bishop,  Criminal  Law,  II,  Sec.  982.  S.  1. 

27  Goodnow,  op.  cit.   298,  citing  so  Ingersoll,   Pub.   Corp.,  90. 
People  v.  Coon,  15  Wend.  (N.  Y.) 

277;    People   v.   Norton,   7   Barb. 
(N.  Y.)  477. 


POLICE   POWER — NATURE   OF,    AND    METHODS  161 

§  160.  Courts  feeble  to  resist  acts  under  discretion. 

It  therefore  follows  that  though  the  courts  have  a  right 
to  review  the  acts  of  officers,  the  courts  offer  but  a 
feeble  resistance  to  the  misdeeds,  either  of  commission 
or  of  omission,  of  an  officer  acting  under  discretionary 
power.  The  evils,  therefore,  of  such  an  administration 
may  possibly  far  exceed  the  benefits.  The  very  fact 
of  personal  liability  under  discretionary  power  may 
often  deter  an  officer  from  doing  his  duty.  This  is  par- 
ticularly the  fact  when  the  action  must  be  summary. 
He  may  act  in  good  faith  and  with  intelligence,  but 
after  the  act  has  passed  he  may  be  cited  into  court, 
and  a  miscarriage  of  justice  is  far  from  impossible. 
In  the  absence  of  immediate  danger,  facts  assume  a 
different  color,  and  far  too  frequently  the  decisions  as 
to  fact  must  rest  with  a  jury  who  are  neither  fitted  by 
nature  nor  education  to  give  an  intelligent  decision. 
Attorneys  ordinarily  competent  not  infrequently  fail 
to  grasp  the  underlying  principles  of  public  health  ad- 
ministration, even  when  they  suppose  themselves 
posted;  and  judges,  in  their  zeal  to  protect  the  rights 
of  the  individual,  may  be  somewhat  colorblind,  and 
misled.  This  denotes  no  intentional  injustice.  It  is 
merely  the  result  of  the  natural  limitations  in  knowl- 
edge especially  among  the  laity  in  regard  to  a  rapidly 
advancing  science. 

§  161.  Statutory  action.  Opposed  to  discretionary 
authority  and  duty  we  find  those  specially  commanded 
by  statutory  enactments.  In  mandatory  matters  the 
work  of  the  officer  is  not  with  discretion,  but  is  called 
ministerial.  In  ministerial  duties  the  officer  has  cer- 
tain set  bounds  of  action.  He  must  do  all  that  the  law 
commands;  he  must  not  do  that  which  the  law  pro- 


162  PUBLIC    HEALTH    ADMINISTRATION 

hibits.  Here  he  may  be  forced  by  mandamus,  and  he 
is  also  subject  to  private  action,  whenever  he  shall  de- 
viate from  the  prescribed  limits  of  his  duty.  Manda- 
tory law  may  be  just  as  truly  under  police  power  as 
action  which  is  discretionary.  Thus,  the  requirement 
that  a  man  must  obtain  a  license  before  entering  upon 
the  business  of  selling  milk  is  mandatory  upon  the  in- 
dividual, and  it  is  to  be  justified  by  the  necessity  of 
public  supervision  of  the  trade  under  police  power. 
It  is  mandatory  upon  the  officer  because  he  must  en- 
force the  requirement  of  license.  So,  too,  a  law  may 
be  partially  mandatory,  and  partially  discretionary. 
A  law  requiring  the  health  office  to  quarantine  cases 
of  infectious  diseases  would  be  mandatory  as  to  fact 
of  quarantine ;  but  it  would  be  discretionary  as  to  the 
method  and  degree  of  quarantine,  and  also,  unless  the 
diseases  were  specified,  as  to  what  diseases  should  be 
included,  until  there  should  be  a  determination  by 
judicial  action.  Public  health  workers  today  would 
include  malaria.  Many  physicians  would  not  consider 
that  disease  a  fit  object  of  quarantine.  The  official 
might,  or  might  not  regard  it  as  included  under  the 
general  term.  If  he  attempted  to  quarantine  such  a 
case  he  might  be  cited  into  court  to  justify  his  action. 
If  he  convinced  the  court  of  the  soundness  of  his  views, 
he  would,  under  the  supposed  conditions,  thereafter 
be  forced  to  quarantine  all  such  cases.  If,  on  the  other 
hand,  he  did  not  quarantine  a  malarious  case,  he  might 
be  cited  into  court  by  some  aggrieved  neighbor,  and 
the  private  interests  might  prove  the  infectious  nature 
of  the  ailment.  Again  the  officer  would  be  forced  to 
act. 

Mandatory  law  presupposes  a  predetermination  of 


POLICE  POWER — NATURE  OF,   AND   METHODS  163 

the  necessities  of  all  the  cases  which  might  arise.  This 
is  manifestly  impossible;  and  even  were  it  possible  it 
would  often  be  practically  impossible  so  to  draft  the 
statute  as  to  give  the  greatest  efficiency  with  the  least 
hardship. 

§162.  Judicial  determination  under  police  power. 
Since  the  basis  of  most  public  health  work  is  to  be 
found  in  the  general  idea  of  nuisance,  the  health  ex- 
ecutive may  very  properly  appeal  to  the  court  for  the 
determination  of  each  particular  case.  This  is  indeed 
due  process  of  law,  and  the  decision  of  the  court  is 
final.  This  will  protect  the  executive  from  danger  of 
damage  suits.  The  responsibility  then  rests  with  the 
courts.  Such  a  course  causes  delay,  and  sacrifices  ef- 
ficiency to  protection  of  the  officer.  Unfortunately  the 
court  is  seldom  educated  to  the  essential  requirements 
of  the  service.  He  must  depend  upon  the  opinion  of 
others,  and  he  may  not  at  all  times  be  able  to  decide 
as  to  which  of  conflicting  opinions  presented  is  correct. 
He  may  easily  be  led  to  trust  to  the  advice  of  some 
reputable  practitioner  of  medicine  who  may  not  be  es- 
pecially educated  in  the  science  of  public  health.  Fur- 
ther, unless  the  health  official  be  also  posted  as  to  legal 
proceedings,  and  thus  able  to  conduct  his  case  personal- 
ly, the  essential  points  may  not  be  properly  presented 
to  the  court.  While,  therefore,  this  method  preserves 
effectually  some  of  the  rights  of  individuals,  it  ham- 
pers and  endangers  efficiency  in  administration. 

1 '  The  basis  of  all  administration  is  found  in  the  law 
itself.  If  the  law  is  absolute,  what  is  commanded  must 
be  done;  if  the  law  is  specific,  that  must  be  performed 
that  is  directed — to  the  extent  that  a  duty  is  minister- 
ial, mechanical  execution  is  required.     This  is  not  a 


164  PUBLIC    HEALTH    ADMINISTRATION 

question  of  the  better  method;  that  method  must  be 
followed."31  If  then  the  law  be  specific,  the  only 
questions  which  may  come  before  the  court  are  those 
of  fact.  If  the  power  granted  by  the  law  be  discretion- 
ary, the  questions  which  may  be  presented  to  the  court 
are  those  of  fact,  of  reasonableness,  and  of  extent  of 
discretion.  The  law  may  be  discretionary  as  to  method 
chosen,  though  it  be  mandatory  in  requiring  action. 

Suppose  that  a  statute  requires  the  quarantine  of  in- 
fectious diseases,  but  neither  specifies  the  manner  of 
quarantine,  nor  defines  what  diseases  are  to  be  in- 
cluded. These  points  must  then  lie  within  the  discre- 
tion of  the  officer,  and  his  acts  may  be  at  any  time 
questioned.  (Chap.  XIV.)  He  may  be  obliged  to 
prove  in  court  that  his  diagnosis  is  correct ; 32  that  the 
disease  is  infectious  within  the  meaning  of  the  law ; 33 
and  that  the  quarantine  measures  adopted  are  reason- 
able.34 If,  on  the  other  hand,  the  statute  specified 
which  diseases  are  to  be  considered  infectious,  and 
specified  as  to  the  maximum  and  minimum  require- 
ments as  to  quarantine,  a  very  large  proportion  of  the 
possible  delay  and  annoyance  caused  by  litigation, 
would  be  removed,  and  the  efficiency  of  the  health  ad- 
ministrator would  be  thereby  increased.  If  also  the 
statute  specify  that  the  diagnosis  of  the  health  official 
shall  be  legally  binding  and  final,  the  discretionary 
power  thereby  granted  would  again  increase  the  power 
of  the  health  office.    It  would  seem  advisable,  how- 

3i  Wyman,  Ad.  Law,  90.  34  Haverty  v.  Bass,  66  Me.  11; 

32  Miller  v.  Horton,  152  Mass.  Kirk  v.  Wyman,  65  S.  E.  E.  387; 
540;  Brown  v.  Purdy,  8  N.  Y.  St.  Bloom  v.  City  of  Utiea,  2  Barb. 
143.  104;   Harrison  v.  Mayor  of  Balti- 

33  Kirk  v.  Wyman,  65  S.  E.  E.  more,  1  Gill,  26-*. 
(S.  Car.)  387. 


POLICE   POWER — NATURE   OF,    AND    METHODS  165 

ever,  to  provide  for  an  appeal  as  to  diagnosis,  within 
the  health  department.  Such  an  appeal  should  not 
serve,  as  would  court  action,  to  stop  proceedings,  and 
thus  to  hamper  efficiency;  and  the  provision  for  the 
appeal  should  be  so  worded  that  a  change  in  diagnosis 
should  not  be  retroactive,  back  of  the  time  when  the 
new  diagnosis  may  be  made.  A  case  which  is  strong- 
ly suggestive  of  diphtheria  must  be  regarded  by  the 
efficient  officer  as  one  of  genuine  diphtheria  until  it  is 
clear  that  it  is  not.  Such  a  diagnosis  calls  for  the  im- 
mediate injection  of  antitoxin  as  a  curative  measure, 
and  perhaps  in  the  persons  of  those  exposed  to  prevent 
infection.  As  the  result  of  such  a  diagnosis  the  family 
may  be  put  to  large  expense,  as  well  as  worry.  If  the 
final  decision  is  against  the  diphtherial  infection,  and 
if  a  court  is  convinced  that  there  had  been  no  infection 
with  that  germ,  it  is  not  at  all  impossible  that  the 
maker  of  the  first  diagnosis  may  be  legally,  though  un- 
justly, assessed  damages.  There  is  another  reason  for 
such  a  statute.  A  diagnosis  is  often  impossible  at  the 
first  call.  Time  must  be  given  for  a  study  of  the  de- 
velopment of  the  case,  and  for  the  incubation  of  cul- 
tures. In  the  development  of  cultures  time  must  also 
be  permitted  to  guard  against  errors.  For  example, 
even  in  a  throat  containing  many  diphtheria  bacilli, 
through  the  preliminary  use  of  local  antiseptic  by  the 
patient,  or  through  some  other  unfavorable  element, 
the  first  attempt  at  getting  a  culture  may  be  negative, 
but  later  the  germs  may  be  found  in  large  numbers. 
The  diagnosis  of  the  health  officer  should  be  considered 
final,  in  that  he  should  not  be  held  for  error  in  judg- 
ment ;  but  all  interested  should  have  the  protection  af- 
forded by  an  appeal  against  incompetence  or  malad- 
ministration on  the  part  of  the  officer. 


166  PUBLIC    HEALTH    ADMINISTRATION 

Take  another  illustration.  The  general  authority  of 
a  health  officer  under  police  power  is  sufficient  to  jus- 
tify and  enable  him  to  make  such  orders  as  he  might 
think  needed  relative  to  the  care  to  be  used  in  the  milk 
business.  If,  however,  the  farmer  or  the  dealer  should 
see  fit  to  violate  those  orders  or  regulations,  the  burden 
of  proof  must  of  necessity  fall  upon  the  health  depart- 
ment to  show  the  necessity  for  the  regulations,  and 
the  reasonableness  of  their  provisions.  Each  case  must 
be  tried  separately.  With  a  statute  covering  the  gen- 
eral subject  much  of  the  possible  question  would  be 
removed,  and  court  investigations  would  be  reduced 
chiefly  to  matters  of  fact — the  question  as  to  the  viola- 
tion of  the  law.  "The  distinction  between  a  judicial 
and  a  legislative  act  is  well  defined.  The  one  deter- 
mines what  the  law  is,  and  what  the  rights  of  the  par- 
ties are,  with  reference  to  the  transactions  already 
had;  the  other  prescribes  what  the  law  shall  be,  in 
future  cases  arising  under  it. ' ' 35 

§  163.  Efficiency  increased  by  definiteness  of  enact- 
ment. It  may  be  seen  then  that  in  administration  of 
police  power  in  the  interest  of  life  and  health  efficiency 
is  increased  and  certainty  is  gained  through  definite- 
ness of  statutory  enactment.  It  is  indeed  a  supremacy 
of  law,  with  the  personal  equation  reduced  to  a  mini- 
mum. With  this  definiteness,  and  by  the  same  act, 
individual  liberty  is  safeguarded.  By  enactment  a 
large  portion  of  discretionary  power  is  substituted  by 
ministerial  duty. 

§164.  Variety  of  methods.    We  find,  therefore,  that 

35  Sinking  Fund  Cases,  90  U.  S. 
(per  Field,  J.)  761;  also  Mabry  v. 
Baxter,  11  Heisk.  (Tenn.)  682. 


POLICE   POWER — NATURE   OF,    AND    METHODS  167 

in  the  use  of  police  power  there  are  many  methods, 
each  of  which  has  its  proper  place  and  value.  1.  Sum- 
mary action,  by  the  executive,  must  be  preserved;  but 
it  should  be  limited  to  emergency,  and  an  emergency 
is  not  such  a  condition  as  might  have  been  reasonably 
anticipated.36  Still,  if  as  a  matter  of  fact  the  condi- 
tions be  not  anticipated,  and  guarded  against,  sum- 
mary action  may  become  necessary.  2.  Individual  ac- 
tion by  the  aid  of  court  decision,  and  without  previous 
legislation  or  general  regulation,  is  frequently  efficient 
in  the  case  of  nuisance.  It  is  more  safe  for  the  execu- 
tive, and  more  perfectly  guards  the  safety  and  liberty 
of  the  individual  citizen,  and  the  security  of  his  prop- 
erty. 3.  General  rules,  regulations,  and  orders,  issued 
and  published  by  the  executive,  while  sometimes  effi- 
cient under  the  general  power,  yet  when  contested 
generally  prove  to  be  a  veiy  weak  reed  upon 
which  to  lean.  The  executive  may  issue  only  such  or- 
ders as  are  clearly  within  prescribed  power.37  4. 
Municipal  ordinances.  For  the  same  reasons,  par- 
tially, as  in  the  previous  class  of  cases,  ordinances  may 
prove  weak  and  inefficient.  The  municipality  is  prac- 
tically considered  an  executive,  not  a  legislative  body. 
Municipal  ordinances  are  superior  to  executive  regula- 
tions issued  by  the  health  department  in  that  they  do 
more  fully  preserve  the  due  process  of  law,  by  virtue  of 
the  fact  that  a  certain  public  hearing  is  afforded  in  the 
passage  of  the  ordinance.  5.  Lastly  there  is  the 
method  of  legislation.  This  preserves  the  idea  of  due 
process,  largely  reduces  the  personal  equation  of  ad- 


36  Jenkins   v.    Board    of    Educa- 

466;   Pub.  Co.  v.  Payne,  30  Was. 

tion,  234  111.  422. 

L.  E.  339. 

37  Morrill    v.    Jones,    106    U.    S. 

168  PUBLIC    HEALTH   ADMINISTRATION 

ministration,  and  substitutes  a  certain  definiteness  for 
the  uncertainties  of  discretionary  administration.  It 
relieves  the  executive  of  much  responsibility,  and  so 
long  as  he  is  complying  with  the  exact  requirements  of 
the  statute  he  is  personally  protected  from  all  civil  ac- 
tion. As  will  subsequently  be  shown  (Chapter  XI), 
even  the  community  is  protected  from  the  danger  of 
civil  claims. 

§  165.  Disadvantages  in  administration  through 
enactment.  While  administration  through  legislation 
has  certain  advantages,  it  also  has  certain  disadvan- 
tages. It  provides  no  latitude  of  application,  if  the 
requirements  are  definite.  This  may  seriously  hamper 
efficiency,  and  work  injustice  to  individuals.  For  ex- 
ample: there  may  be  typhoid  fever  in  two  adjacent 
families.  The  one  is  intelligent,  and  conscientious. 
They  may  carefully  sterilize  all  discharges  from  the 
patient,  and  in  other  ways  protect  the  community  from 
danger  of  infection.  The  working  members  of  the 
family  may  be  employed  where  there  is  practically  no 
possibility  for  communicating  infection,  as  in  the  hard- 
ware business.  The  other  family  may  be  careless,  and 
not  realize  the  necessities  for  caution.  They  regard, 
perhaps,  the  illness  as  one  of  the  inscrutable  ministra- 
tions of  providence.  They  do  not  understand  the  exact 
requirements  of  sterilization  of  discharges,  and  while 
they  go  through  the  form,  they  are  not  thorough.  The 
members  of  the  family  indiscriminately  take  care  of 
the  patient,  and  while  ordinarily  clean  to  appearance, 
they  use  no  special  precaution  as  to  cleansing  their 
hands.  Moreover,  the  working  members  of  the  family 
may  be  engaged  in  the  handling  of  food  which  will  not 
be  cooked  after  their  handling,  as  in  a  bakery,  or  milk 


POLICE   POWER — NATURE   OF,   AND    METHODS  169 

depot.  This  second  family  must  be  strictly  quar- 
antined, and  restricted  from  participating  in  business, 
to  secure  the  same  degree  of  community  protection  as 
may  be  present  without  any  restriction  placed  upon 
the  first  family.  If  one  law  is  to  be  enacted  to  fully 
cover  both  cases,  the  basis  of  that  law,  for  the  good  of 
the  community,  must  be  the  second  family.  Such  a 
law  would  work  an  injustice  to  the  first  family. 

Again:  exact  legislation  makes  no  provision  for 
advances  in  science.  Suppose  that  the  law  required 
disinfection  by  formaldehyde  fumigation  in  all  cases 
of  infection.  That  gas  is  weak  as  against  bedbugs,  or 
vermin.  It  is  quite  possible  for  bedbugs  to  preserve 
the  germ  of  typhoid,  and  to  infect  other  persons.  The 
formaldehyde  gas  is  not  efficient  therefore  in  such  dis- 
infection, whereas,  sulphurdioxide  would  be  efficient. 
The  same  is  true  relative  to  the  disinfection  after  a 
case  of  plague,  which  is  communicated  through  the 
partnership  of  the  flea  and  rat.  A  short  time  ago  it 
was  supposed  that  the  burying  of  infected  typhoid 
discharges  was  sufficient  unless  such  burial  might  in- 
fect water  supplies.  Now  it  is  known  that  the  typhoid 
bacillus,  which  dies  soon  in  pure  water,  or  when  ex- 
posed to  the  dry  sunlight,  will  live  in  the  earth  at 
least  eighty  days;  and  that  fly  infected  discharges 
buried  six  feet  under  the  surface  of  the  ground  may 
permit  the  hatched  larvae  to  crawl  to  the  free  air  as 
a  fly.  Legislation  based  on  the  former  ideas  might 
prevent  efficient  administration.  Further  it  has  been 
shown  that  lettuce  grown  upon  infected  soil  may  bear 
the  typhoid  bacilli  upon  its  leaves.  This  shows  a  ne- 
cessity for  a  restriction  in  the  disposal  of  nightsoil 
which  might  have  been  unnecessary  under  the  former 
degree  of  knowledge.     (See  Chapter  XVI.) 


170  PUBLIC    HEALTH   ADMINISTRATION 

§  166.  Legislation  should  be  mandatory  only  where 
based  on  settled  facts.  Efficiency  and  justice  in  the 
administration  of  police  power  therefore  suggest  that 
as  much  as  possible  shall  be  anticipated  in  legislation, 
but  legislation  should  only  be  definite  and  mandatory 
with  regard  to  the  points  which  are  more  sure.  Dis- 
cretionary administrative  power  should  be  added  to 
extend  the  beneficent  governmental  supervision,  and 
that  that  discretion  should,  so  far  as  possible,  be  made 
exact  by  general  rules  and  regulations.  Regulations 
may  be  speedily  altered  with  changed  conditions, 
whereas  legislative  action  must  be  slowly  effective. 
Finally,  there  must  be  reserved  to  the  health  depart- 
ment, and  to  each  of  its  responsible  officers,  certain 
discretionary  powers  for  use  in  genuine  emergency. 
Practically  this  plan  amounts  to  this- — that  the  min- 
imum requirements  should  be  marked  by  legislation, 
remembering  that  the  necessity  for  extension  of  de- 
mands must,  in  case  of  question,  be  proven  to  the  satis- 
faction of  the  court.  Legislation  forms  a  basis  for 
action,  and  permits  the  administrator  to  devote  his 
attention  to  other  matters.  It  serves  much  the  same 
purpose  as  would  the  substitution  of  solid  concrete 
for  a  portion  of  an  earthen  dyke,  permitting  the  guar- 
dian to  devote  practically  all  of  his  thought  to  the 
more  limited  area. 

§167.  Administrative  action  specific;  legislative, 
general.  Administrative  action  is  specific  and  indi- 
vidual, as  contrasted  with  the  general  nature  of  legis- 
lative action,  and  regulations.  Executive  force  is  ap- 
plied in  particular  cases  to  preserve  the  general  wel- 
fare. Not  seldom  an  individual  action  of  the  executive 
may  be  sustained  in  the  court;  when  as  a  general  prop- 


POLICE   POWER — NATURE   OF,   AND    METHODS  171 

osition  it  would  be  refused  recognition.  In  other 
words,  an  emergency  will  justify  that  which  under 
other  conditions  would  be  a  violation  of  right.  Sup- 
pose, for  example,  that  a  health  officer  found  in  a 
mountain  valley  that  typhoid  fever,  evidently  water- 
borne,  was  making  its  way  to  the  foot  of  the  valley; 
and  that  the  people  insisted  in  drinking  the  water 
from  their  springs.  It  is  probable  that  he  would  be 
sustained  in  the  courts  if  he  impregnated  every  spring 
with  ample  quantities  of  chlorinated  lime,  even  though 
he  did  so  without  previous  notice,  and  to  execute  his 
design  he  entered  upon  private  property.  Such  gross 
violation  of  the  rights  of  the  individual  would  not  be 
tolerated  as  a  general  proposition,  and  the  executive 
taking  such  measures  will  run  the  risk  of  being  re- 
garded as  a  common  trespasser,  and  of  being  forced 
individually  to  pay  heavy  damages.  To  guard  against 
this  danger  to  the  official,  he  should,  in  all  cases  in 
which  the  necessary  delay  will  not  too  greatly  hamper 
efficiency,  preserve  that  protection  of  individual  lib- 
erty, due  process,  by  taking  the  case  into  court,  and 
thus  throwing  the  responsibility  entirely  upon  the 
court. 

§  168.  Public  health  portion  of  police  power  includes 
what?  "The  police  power,  so  far  as  it  relates  to  the 
public  health  includes  the  making  of  sewers  and  drains 
for  the  removal  of  garbage  and  filth,  the  boring  of 
artesian  wells  and  the  construction  of  aqueducts  for 
the  purpose  of  procuring  a  supply  of  pure,  fresh 
water,  the  drain  of  malarious  swamps,  and  the  erec- 
tion of  levees  to  prevent  overflows."38    Laws  fbrbid- 

38  Wilson  v.  Sanitary  District  of 
Chicago,  133  111.  443. 


172  PUBLIC   HEALTH   ADMINISTRATION 

ding  the  intermarriage  of  white  and  black  persons  are 
a  proper  use  of  police  power.39  But  such  laws  passed 
under  police  power  must  be  the  same  for  all  classes, 
and  not  varied  for  particular  individuals,  or  favored 
classes.40  The  business  of  dealing  in  second-hand 
clothing  is  a  proper  one  for  police  regulation.41  Eeg- 
ulation  of  the  milk  industry,  preserving  the  purity  and 
good  quality  of  milk,  is  a  proper  use  of  police  power.42 
A  law  limiting  the  hours  of  labor  in  mines  was  upheld 
by  the  Supreme  Court  of  the  United  States  as  a  proper 
use  of  the  police  power.43  With  the  changes  in  indus- 
trial conditions,  and  with  the  clearer  insight  into  the 
biological  problems  involved,  we  may  find  a  change  in 
the  attitude  of  courts  with  regard  to  similar  laws. 
This  change  is  also  due  in  part  to  the  difference  in 
the  way  of  presenting  the  case.  Thus,  in  the  first 
Ritchie  case,44  emphasis  was  placed  upon  the  indus- 
trial and  economic  factors  of  the  case,  and  a  law  lim- 
iting the  hours  for  employment  of  women  was  declared 
to  be  an  improper  use  of  police  power.  Fourteen 
years  later  the  same  court  in  the  second  Eitchie  case,45 

39  State  v.  Gibson,  36  Ind.  389 ;  42  State  v.  Nelson,  66  Minn.  166 ; 
State  v.  Hairston,  63  N.  C.  451;  People  v.  Mulholland,  82  N.  Y. 
Allis  v.  State,  42  Ala.  525.  324;  Commonwealth  v.  Wheeler,  91 

40  Locke  on  Civil  Government,  N.  E.  E.  Mass.  415 ;  State  v.  Dupa- 
Sec.  142;  State  v.  Duffy,  7  Nev.  quier,  46  La.  Ann.  577;  People  v. 
349;  Dewis  v.  Webb,  3  Greenl.  Van  de  Carr,  81  App.  Div.  128; 
326;  Durham  v.  Lewiston,  4  Commonwealth  v.  Waite,  11  Allen 
Greenl.  140;  Holden  v.  James,  11  (Mass.)  264;  Commonwealth  v. 
Mass.  396.  Carter,    132    Mass.    12;    State    v. 

4i  State  v.  Taft,  118  N.  C.  1190;  Campbell,  64  N.  H.  402;  Johnson 

Greensborough    v.    Ehrenruch,    80  v.  Simonton,  43  Cal.  242. 

Ala.  579;  Weil  v.  Record,  24  N.  J.  «  Holden  v.   Hardy,   169   U.    S. 

Eq.    169;    State  v.   Long  Branch,  366. 

42  N.  J.  L.  364 ;  State  v.  Seigel,  44  Ritchie  v.  People,  155  111.  98. 

60  Minn.  507;  Marmet  v.  State,  45  45  Eitchie   v.    Wayman,   244  111. 

Ohio,  63.  509. 


POLICE   POWER — NATURE   OF,    AND    METHODS  173 

in  which  emphasis  was  placed  upon  the  biologic  laws 
involved,  upheld  a  similar  law  as  a  right  use  of  police 
power.  In  People  v.  Williams,46  a  statute  prohibiting 
night  factory  work  by  women  was  declared  not  valid, 
apparently  upon  technical  legal  grounds.  It  was  not 
clearly  intended  as  a  health  measure,  according  to  the 
wording  of  the  statute.  A  statute  in  Oregon,  limiting 
the  laboring  hours  of  women  was  upheld  by  the  Su- 
preme Court  of  the  United  States  in  the  October  term, 
1907,  in  a  sweeping  decision.47  (See  Chapter  XVIII.) 
Eegulation  of  the  practice  of  medicine  is  proper  under 
police  power.48 

The  requirement  of  a  license  before  engaging  in  a 
business  or  occupation  is  a  very  common  use  of  the 
police  power,  but  laws  interfering  with  personal  lib- 
erty cannot  be  upheld  unless  the  public  health,  com- 
fort, safety,  or  welfare  depend  upon  their  enactment 
and  liberty  embraces  the  right  to  follow  a  chosen  occu- 
pation.49 The  law  must  be  impartial.50  There  must 
be  no  discrimination  as  to  fee,  or  otherwise,  between 
residents  and  non-residents.51 

"Since  health  as  well  as  order  is  an  essential  of 
good  living,  and  one  of  the  primary  purposes  of  mu- 
nicipal incorporation,  sanitary  powers  may  not  only 
be  expressly  conferred  by  the  charter,  or  implied  there- 
from, but  they  have  been  judicially  declared  to  be  in- 
herent  in   a   municipality   as    a   necessary   attribute 

<e  189  N.  Y.   131.  gi  Indianapolis     v.     Beiler,     138 

47Muller    v.    State,    208    U.    S.  Ind.  30;  Clement  v.  Town  of  Cas- 

412.  per     (Wy.),    35    Pac.    Eep.    472; 

48  Watson  v.  Maryland,  105  Md.  Mnhlenbriek  v.  Com.,  44  N.  J.  L. 
650,  66  A.  635 ;  Dent  v.  State,  129  365 ;  State  v.  Orange,  50  N.  J.  L. 
U.  S.  114.  389;  Burrough  of  Sayre  v.  Phillips, 

49  Bissette  v.  People,  193  111.  334.       148  Pa.  482;  State  v.  Ocean  Grove 
so  State  v.  Manner,  43  La.  Ann.       C.  M.  A.,  55  N.  J.  L.  507. 

496. 


174:  PUBLIC   HEALTH    ADMINISTRATION 

thereof.52  This  police  power  has  been  used  to  secure 
pure  water  supply.53  Regulation  of  the  cleaning  and 
care  of  cesspools  is  a  proper  use  of  municipal  police 
power.54  Burial  of  the  dead  is  a  proper  subject  for 
police  regulation.55  But,  "A  bylaw  which  assumes  to 
be  a  police  regulation,  but  deprives  a  party  of  the 
use  of  his  property  without  regard  to  the  public  good, 
under  the  pretence  of  the  preservation  of  health, 
when  it  is  manifest  that  such  is  not  the  object  and 
purpose  of  the  regulation,  will  be  set  aside  as  a  clear 
and  direct  infringement  of  the  right  of  property  with- 
out any  compensating  advantages."56  So,  when  an 
ordinance  prohibited  the  burying  of  a  dead  body  which 
was  brought  into  town,  it  was  declared  void.57 

§169.  Regulation  versus  prohibition.  Regulation 
is  very  different  from  prohibition.  It  implies  the  con- 
tinuance of  an  operation  or  business,  but  within  cer- 
tain general  restrictions,  and  under  some  degree  of 
supervision.  This  distinction  frequently  is  the  dis- 
tinguishing point  between  legal  and  illegal  efforts  and 
ordinances.  Thus,  while  the  general  supervision  as 
to  location  and  care  of  slaughter  houses  is  a  proper 
subject  for  police  regulation,58  under  the  general 
power  granted  to  the  city  to  compel  owners  and  occu- 
pants of  slaughter  houses  to  cleanse  and  abate  them 

salngersoll,    Pub.    Corporations,  87  Texas,  330;  Coates  v.  New  York, 

121.  7  Cow.  586;  In  re  Bohen,  115  Cal. 

ss  Kennedy    v.    Phelps,    10    La.  372. 

Ann.  227 ;  Suffield  v.  Hathaway,  44  se  Cooley,  Cons.  Lim.  203. 

Conn.  521 ;  Smith  v.  Nashville,  88  "  Austin    v.    Murray,    16    Pick. 

Tenn.  464.  121. 

s*  Commonwealth  v.  Cutter,  156  58  Ex    parte    Heilbron,    65    Cal. 

Mass.  52;   Nieoulin  v.   Lowery,  49  609 ;  Beiling  v.  Evansville,  144  Ind. 

N.  J.  L.  391.  644;  Huesing  v.  Eock  Island,  128 

55  Graves  v.  Bloomington,  17  111.  111.  465;  Inhabitants  of  Watertown 

App.   476;    Austin  v.    Association.  v.  Mayo,  109  Mass.  515. 


POLICE   POWER — NATURE   OF,    AND    METHODS  175 

whenever  necessary,  it  was  held  that  the  city  could 
not  pass  an  ordinance  prohibiting  the  slaughter  of 
animals  within  the  city.39  "Necessary  restriction  can- 
not sanction  or  cover  arbitrary  discrimination. ' ' 60 
"In  the  absence  of  an  epidemic  showing  an  apparent 
necessity  therefor,  an  ordinance  prohibiting  any  one 
from  bringing  second-hand  clothing  into  a  town  or 
exposing  it  for  sale  therein,  without  furnishing  proof 
that  it  did  not  come  from  an  infected  district,  is  an 
unreasonable  restraint  of  trade."01  However,  "A 
very  clear  abuse  of  the  police  power  must  be  shown  in 
order  to  justify  a  court  in  declaring  ordinances  regu- 
lating the  business  of  pawnbrokers,  junk  dealers  and 
dealers  in  second-hand  goods  unreasonable  and 
void. ' ' 62  The  sale  of  second-hand  clothing  is  not  a 
nuisance  per  se,  but  it  is  on  the  other  hand  a  lawful 
business,  and  under  proper  regulations  may  be  so  con- 
ducted as  to  be  without  danger  to  the  health  of  the 
community,  and  at  the  same  time  be  a  great  benefit  to 
a  large  portion  of  the  people.  There  is  nothing  dan- 
gerous to  health  in  articles  of  second-hand  clothing 
themselves ;  they  can  only  become  noxious  by  reason  of 
prior  use,  of  having  been  worn  or  possessed  by  persons 
themselves  infected,  or  living  in  infected  communi- 
ties.63 Things  susceptible  of  use  to  the  injury  of  health 
can  be  regulated  under  police  power.64     The  Georgia 

59  Wreford  v.   People,   14   Mich.  Greensboro   v.    Ehrenreich,   80   At, 

41.  579. 

so  Freund,  Police  Power,  640.  64  Hernandez  v.  State,  135  S.  W. 

eiKosciusco     v.     Stomberg,     68  170;   State  v.  Griffin,  69  N.  H.   1; 

Miss.  469.  State    v.    Noyes,    30    N.    H.    279; 

62  Grand  Eapids  v.   Braudy,  105  Crowley  v.   Christensen,   137  U.   S. 

Mich.  670.  86. 

ea  State  v.  Taft,  118  K  C.  1190; 


176  PUBLIC    HEALTH    ADMINISTRATION 

statutes  relative  to  the  sale  of  second-hand  clothing- 
refer  only  to  such  clothing  shipped  into  the  state.05 

§  170.  Reasonableness.  The  validity  of  action  under 
police  power  may  frequently  turn  upon  its  reasonable- 
ness. An  action  which  is  not  reasonable  is  arbitrary; 
and  arbitrary  actions  are  never  sanctioned  under  our 
institutions.  The  degree  of  reasonableness  may  deter- 
mine that  a  certain  act  would  be  lawful  for  the  state, 
though  unlawful  for  the  city.  Matters  that  are  settled 
by  common  usage  or  common  knowledge  would  be 
deemed  reasonable  in  municipal  legislation:  but  pro- 
posed actions,  based  upon  less  definitely  recognized 
facts  of  science,  or  upon  unsettled  usages,  might  be 
permitted  in  state  legislation,  though  they  would  be 
considered  unreasonable  on  the  part  of  the  city. 

A  state  may  pass,  as  reasonable,  laws  which  would 
not  be  permitted  to  municipalities  as  reasonable.66 
Questions  of  policy  as  determined  by  the  legislature 
are  held  conclusive  by  the  court,  and  therefore  not 
subject  to  court  revision.67  But  a  law  which  does  not 
clearly  obtain  the  object  sought,  and  with  the  least 
oppression,  will  be  declared  unconstitutional.68  An 
ordinance  cannot  be  considered  unreasonable  and  void, 
which  is  expressly  authorized  by  the  legislature.69  So, 
though  creating  a  monopoly  in  making  a  contract  for 
the  collection  of  garbage,  the  city  of  Indianapolis  was 
expressly  authorized  in  its  charter.70     Without  such 

65  J.  H.  Smith  &  Co.  v.  Evans,  S.  313 ;  E.  E.  Co.  v.  Husen,  5  Otto, 
53   S.   E.   589.  465. 

66  Landberg  v.  Chicago,  237  111.  69  Coal  Float  Co.  v.  Jefferson, 
117;  Jenkins  v.  Bd.  Education,  234  112  Ind.  15;  Cooley,  Cons.  Lim. 
111.  422.  241. 

67  License  Cases,  5  Wall.  462  and  ™  Walker  v.  Jameson,  140  Ind. 
475.  591. 

68  Minnesota  v.  Barber,   136  U. 


POLICE   POWER — NATURE   OF,    AND    METHODS  177 

express  permission,  the  city  may  not  create  a  monop- 
oly.71 In  the  case  just  cited,  of  Landberg  v.  Chicago, 
the  points  were  on  all  fours  with  the  case  of  Walker  v. 
Jameson,  apparently,  both  being  on  contracts  let  for 
the  disposal  and  collection  of  garbage.  Though  the 
Illinois  court  stated  that  such  an  ordinance  was  null 
and  void  in  the  absence  of  express  legislative  permis- 
sion, apparently  the  attention  of  the  court  was  not 
called,  through  the  neglect  probably  of  the  counsel  for 
the  city,  to  such  an  express  provision,  relative  to  the 
very  matter  of  collection  and  disposal  of  garbage  by 
Sec.  623,  of  Chapter  24,  Eevised  Statutes  of  Illi- 
nois. This  case,  by  the  way,  shows  the  necessity  for 
more  attention  being  devoted  to  this  important  branch 
of  legal  practice.  Such  cases  are  of  too  great  import- 
ance for  the  welfare  of  the  community  to  be  entrusted 
to  those  who  do  not  show  an  appreciative  sympathy 
with  the  spirit  of  the  work. 

An  ordinance  requiring  three  and  one-half  per  cent. 
of  butter  fat  in  milk  was  not  considered  as  unreason- 
able, though  it  did  necessitate  an  unusual  degree  of 
care  in  selection  and  feed  of  cattle.72  It  is  not  un- 
reasonable to  require  that  a  dealer  shall  know  the 
standard  of  the  milk  which  he  sells ; 73  or  that  a  drug- 
gist shall  know  the  degree  of  purity  of  his  drugs.74  An 
ordinance  requiring  the  dealer  of  milk  to  give  not 
exceeding  half  a  pint  of  milk  for  analysis  was  upheld 
as   reasonable ; 75   though  where   the   ordinance   pro- 

7i  Chicago  v.  Rumpff,  45  111.  90 ;  74  Dist.   of   Col.   v.   Lynham,   16 

Landberg  v.  Chicago,  237  111.  117.  Appeals,  D.  C.  185. 

72  Weigand  v.  Dist.  of  Col.,  22  75  State  v.  Dupaquier,  46  La. 
Appeals,  D.  C.  559.  Ann.  577. 

73  Commonwealth  v.  Wheeler,  91 
N.  E.  E.  415. 


178  PUBLIC    HEALTH    ADMINISTRATION 

vided  for  the  purchase  of  milk  by  an  inspector,  "a 
sample  sufficient  for  the  purpose  of  analysis",  and  a 
dealer  refused  to  sell  less  than  a  pint,  as  his  supply 
was  in  bottles,  the  smallest  of  which  contained  a  pint, 
the  dealer  was  sustained,  the  court  holding  that  the 
request  of  the  inspector  was  unreasonable.76 

§  171.  Extreme  use  of  police  power.  Very  extreme 
measures  contained  in  ordinances  may  sometimes  be 
approved  by  the  courts.  The  somewhat  slow  process 
of  legal  decision  might  permit  much  harm  to  be  done, 
and  to  guard  against  such  danger,  summary  powers 
may  be  conferred  upon  the  executive.  The  city  of 
Minneapolis  had  an  ordinance  that  prescribed  as  a 
test  of  the  purity  and  wholesomeness  of  milk  brought 
into  the  city  for  sale,  that  it  must  be  drawn  from  cattle 
previously  tested  with  tuberculin,  and  found  free  from 
disease.  This  tuberculin  is  made  from  the  dead  bac- 
teria of  tuberculosis,  and  when  injected  into  animals 
ill  with  tuberculosis,  it  causes  a  rise  of  temperature. 
By  this  method  tubercular  cattle  may  be  found  before 
other  tests  are  definite.  In  the  earlier  cases  of  the  dis- 
ease the  percentage  of  error  in  this  test  properly 
applied  is  very  small.  Such  a  test  was  prescribed  in 
the  ordinance,  which  also  provided  that  milk  not  con- 
forming with  the  requirements  might  be  seized  and 
summarily  destroyed.  Milk  was  so  seized,  and  emptied 
upon  the  streets.  It  must  be  remembered  that  milk 
is  subject  to  rapid  change,  and  it  is  therefore  of  only 
very  temporary  value.  The  storage  and  impounding 
of  the  supply  would  serve  no  good  purpose.  In  the 
second  Nelson  case 77  the  court  said :  ' '  The  methods  to 

T6  Dist.  of  Col.  v.  Garrison,  25  Minn.  16 ;  Adams  v.  Milwaukee,  223 
Appeals,  D.  C.  563.  U.  S.  572. 

77  Nelson    v.     Minneapolis,     112 


POLICE   POWER — NATURE   OF,    AND    METHODS  179 

be  adopted  to  insure  a  supply  of  pure  milk,  and  the 
standard  by  which  the  same  shall  be  determined,  is 
a  legislative,  not  a  judicial  question.  An  ordinance 
authorizing  the  summary  seizure  and  destruction  of 
milk  not  conforming  to  the  standard  fixed  by  law  is  not 
violative  of  the  constitutional  rights  of  the  citizen,  nor 
a  taking  of  property  without  due  process  of  law. ' '  In 
Blazier  v.  Miller 7S  it  was  also  held  that  under  the  gen- 
eral powers  usually  granted  to  boards  of  health  to 
make  rules  and  regulations  for  the  suppression  of 
nuisances,  it  was  allowable  to  fix  standards  for  the  pur- 
ity of  milk,  to  appoint  an  inspector,  and  to  empower 
him  to  seize  and  destroy  any  milk  found  below  the 
standard  adopted.79  The  supreme  court  of  the  state 
of  Washington 80  held  that  a  qualified  health  officer  of 
a  county  would  have  power  to  seize  a  private  building 
in  which  to  confine  a  small-pox  patient  without  express 
authorization,  either  from  the  statute  or  from  the 
county  board  of  health.   (§411.) 

' '  The  absolute  destruction  or  abrogation  of  property 
rights — including  confiscatory  regulation  leaving  no 
reasonable  profit  to  the  owner — is  an  extreme  exercise 
of  the  police  power.  Where  it  is  proposed  to  exercise 
such  an  authority  the  constitutional  right  of  private 
property  must  be  weighed  against  the  demands  of  the 
public  welfare,  and  it  is  obvious  that  a  public  interest 
which  is  strong  enough  to  justify  regulation  may  not 
be  strong  enough  to  justify  destruction  or  confiscation 
without  compensation."81    (§188.)     The  destruction 

78  10  Hun.  435.  so  Brown    v.    Pierce    County,    28 

79  See  also,  Deems  v.  Mayor,  80      Wash.  345. 

Md.  164;  Shivers  v.  Newton,  45  N.  si  Freund,  Police  Power,  517. 

J.  L.  469. 


180  PUBLIC    HEALTH   ADMINISTRATION 

of  sound  property,  without  compensation  would  be 
unconstitutional.82  An  officer  who  destroyed  such 
property  which  had  an  intrinsic  value,  even  though 
used  in  an  unlawful  manner  and  therefore  a  nuisance, 
would  be  liable  for  tort.  Property  created  contrary 
to  law  does  not  represent  a  lawful  interest  on  the 
part  of  the  owner,  and  it  may  be  summarily  destroyed. 
There  is  no  forfeiture,  because  there  was  no  property 
right.  Thus  a  house  constructed  contrary  to  law  may 
be  destroyed,  but  the  material  must  be  preserved  for 
the  owner.83  Game  killed  contrary  to  law  may  be 
destroyed  summarily,  as  a  nuisance  per  se,  but  if  pro- 
vision be  made  for  the  sale  of  such  seized  matter,  that 
provision  is  an  evidence  that  it  is  not  a  nuisance 
per  se.84 

A  distinction  is  therefore  found  between  substances 
and  property  which  are  nuisances  per  se,  and  those 
which  are  nuisances  in  their  location  or  use.  Even  the 
taking  of  sound  property  without  compensation  is 
sometimes  justified  as  an  administrative  measure, 
especially  where  the  value  of  that  taken  is  insignifi- 
cant.85 Thus  the  taking  of  articles  of  food  for  analysis 
is  upheld,  though  many  states  provide  in  their  statutes 
that  compensation  shall  be  offered.  (§§468,469.)  Nets 
used  for  unlawful  fishing  were  seized  and  destroyed. 
Relying  chiefly  upon  the  small  intrinsic  value,  as  com- 
pared with  the  cost  and  time  in  condemnatory  pro- 
ceedings, the  action  was  upheld.86    The  case  was  taken 

82  Pearson  v.  Zehr,  138  111.  48 ;  84  Sullivan  v.  Oneida,  61  111.  242. 
Miller  v.  Horton,  152  Mass.  540.  g5  Commonwealth  v.   Carter,   132 

83  Eiehenlaub  v.  St.  Joseph,  113  Mass.  12;  State  v.  Dupaquier,  46 
Mo.    395;    King   v.    Davenport,   98  La.  Ann.  577. 

111.  305;   Nine  v.  New  Haven,  40  se  Lawton  v.   Steele,   119  N.  Y. 

Conn.  478.    (But  see  Fields  v.  Stok-      226. 
ley,  99  Pa.  St.  306.) 


POLICE  POWER — NATURE   OF,   AND   METHODS  181 

to  the  Supreme  Court  of  the  United  States  and  again 
sustained,87  with  dissent  by  Chief  Justice  Fuller,  and 
Justices  Field  and  Brewer.  In  Ohio  the  seizure  of  nets 
thus  illegally  used  was  declared  unconstitutional.88 

A  dead  animal  is  not  a  nuisance  per  se,  though  it 
may  become  a  nuisance.  The  owner  does  not  lose 
ownership  with  the  death  of  the  animal,  but  is  entitled 
to  make  such  salvage  as  he  may  from  the  sale  of  the 
hide,  etc.  (§  450.)  Destruction,  or  confiscation  of 
dead  animals,  or  garbage,  requiring  that  they  be  col- 
lected in  a  designated  place,  or  giving  such  articles  to 
a  contractor,  have  been  judicially  declared  to  be  taking 
property  without  due  process  of  law.89  It  may  how- 
ever be  held  "that  property  interests  in  the  noxious 
materials  must  be  subordinated  to  the  general 
good."90  Diseased  cattle  are  nuisances,  and  as  such 
the  law  may  order  their  destruction.  They  may  com- 
municate their  disease  to  other  animals,  or  to  human 
beings.  The  danger  of  such  communication  will  vary 
according  to  the  nature  of  the  disease,  and  the  prog- 
ress which  it  may  have  made.  The  animal  living  or 
dead  may  still  have  a  certain  value.  To  facilitate  the 
abatement  of  the  nuisance,  to  reduce  the  expense  of 
condemnation,  and  to  remove  obstruction  in  health 
administration,  it  is  quite  customary  that  condemned 
animals  be  killed,  and  that  compensation  be  rendered 

87Lawtcm  v.    Steele,    152   U.    S.  ville,  20  Ky.  L.  E.  193;  Campbell 

133.  v.  Dist.  of  Col.,  19  App.,  D.  C.  131 ; 

ss  Edson  v.  Crangle,  62  Ohio  St.  Landberg  v.  Chicago,  237  111.  112. 

49.  90  McGehee,  Due  Process  of  Law, 

89  Underwood  v.  Green,  42  N.  Y.  336;   California  Eed.  Co.  v.  Sani- 

140;  Eiver  Eendering  Co.  v.  Behr,  tary  Eed.  Works,   199  U.   S.   306; 

77  Mo.  91 ;  State  v.  Morris,  47  La.  Gardner    v.    Michigan,    199    U.    S. 

Ann.    1660;    Schoen    Bros.    v.    At-  325;  Walker  v.  Jameson,  140  Ind. 

lanta,  97  Ga.  697 ;  Knauer  v.  Louis-  591. 


182  PUBLIC   HEALTH   ADMINISTRATION 

to  the  owners.  This  is  the  custom  in  France,91  and  in 
Germany,92  but  I  have  failed  to  find  an  English  statute 
granting  compensation.  In  Minnesota  the  statute 
restricts  compensation  to  cases  where  the  animal  is 
found  free  from  disease.  Such  a  statute  works  simply 
to  deny  any  compensation  for  diseased  animals;  for 
common  and  constitutional  law  would,  in  such  cases  as 
are  found  free  from  disease,  protect  the  rights  of  the 
owner.  On  the  other  hand  such  a  law  would  protect 
the  officer  from  the  effects  of  a  mistake  in  judgment. 
The  state  would  assume  the  risks,  and  not  leave  them 
to  the  individual  officer.  A  horse  was  condemned  and 
killed  by  orders  of  the  Board  of  Health  on  account  of 
glanders.  The  diagnosis  was  disputed  by  unofficial 
testimony,  and  the  court  found  against  the  Board.93 

§  172.  Extreme  use  must  be  clearly  necessary. 
Although  it  is  true  that  the  authority  of  police  power 
may  override  every  constitutional  or  statutory  pro- 
vision, still  the  necessity  therefor  must  be  clear  in  the 
particular  case.  Every  statute,  bylaw,  ordinance,  rule, 
regulation,  and  action  must  be  measured  according  to 
the  terms  of  the  constitution,  as  well  as  the  demands  of 
the  case  at  bar.  No  tampering  with  the  essence  of 
the  power  will  be  permitted  by  the  courts.  When  the 
provisions  of  the  constitution  are  to  be  violated  in  one 
point,  the  court  will  be  the  more  lenient  if  other  points 
be  respected.  For  example:  one  of  the  provisions  of 
the  Fourteenth  Amendment  to  the  Constitution  stipu- 
lates that  no  state  shall  deprive  any  person  of  life, 
liberty,  or  property  "without  due  process  of  law." 
The  deprivation  may  be  necessary  as  a  health  measure. 

»i  Law,  July  21,  1881.  as  Miller   v.    Horton,    152    Mass. 

92  Law,  June  23,  1880.  540. 


POLICE  POWER — NATURE  OF,   AND   METHODS  183 

It  will  likely  be  permitted  and  sanctioned  by  the  court 
in  proportion  to  the  fulfilling  the  latter  portion — due 
process  of  law.  Court  action  preserves  this  due  proc- 
ess. Legislation  is  a  recognized  modification  of  due 
process.  Rules  and  ordinances  represent  a  very  weak 
form  of  legislatory  action,  limited  in  scope.  Even  in 
executive  administration  due  process  may  be  pre- 
served, by  giving  notice  and  an  opportunity  for  being 
heard — a  quasi-judicial  proceeding — before  final 
action.  Which  method  shall  be  chosen,  is  a  question 
of  policy,  quite  as  much  as  of  law.  A  wise  choice  must 
be  based  upon  a  knowledge  of  the  principles  of  govern- 
mental action,  quite  as  much  as  upon  the  facts  of 
science. 


CHAPTER  Vn 


'DUE  PROCESS  OF  LAW 


§  173.  Historical  origin,  protection 
of  individual  rights. 

§  174.  Fifth  Amendment  restricts 
nation ;  Fourteenth,  the 
state. 

§175.  Pomeroy's  summary. 

§  176.  Legislation,  due  process  by. 

§  177.  Laws  must  be  impartial. 

§  178.  Protection  from  state,  not 
from  fellow  citizens. 

§  179.  Who  are  protected? 

§  180.  Exclusion  acts. 

§  181.  State  exclusion  acts. 

§  182.  Corporations   are  protected. 

§  183.  Property  is  protected. 

§  184.  Eegulation  includes  contin- 
ued control;  medical  li- 
censes. 

§  185.  Wild  animals  are  protected. 


§186. 
§187. 

§188. 

§189. 
§  190. 
§191. 


§192. 
§  193. 
§194. 

§195. 

§196. 
§197. 


Dogs. 

Property  created  contrary 
to  law  not  protected. 

Property  inherently  harm- 
ful  not   protected. 

Nuisance  per  se. 

Eight  to  a  hearing. 

Property  under  eminent 
domain  and  police  power 
contrasted. 

Due  process  by  executive. 

Health   administration. 

Summary  action  may  be 
legal. 

Legislative  action  must  be 
reasonable. 

Jurisdiction. 

Executive  hearings. 


§173.  Historical  origin — protection  of  individual 
rights.  Under  an  absolute  monarchy  there  is  complete 
union  of  all  governmental  powers.  Individual  oppres- 
sion is  easy,  and  no  person  is  secure  in  the  possession 
of  his  liberty,  or  his  property.  The  first  real  security, 
small  though  it  was,  for  Anglican  peoples,  was 
obtained  in  the  Magna  Charta.  That  contained  the 
provision,  wrung  from  King  John,  "No  freeman  shall 
be  taken,  or  imprisoned,  or  disseised,  or  outlawed,  or 
banished,  or  any  ways  destroyed;  nor  will  we  pass 

184 


DUE   PROCESS   OF  LAW"  185 

upon  him  or  commit  him  to  prison,  unless  by  the  legal 
judgment  of  his  peers,  or  unless  by  the  law  of  the 
land."  As  Professor  Adams  has  shown,1  essentially 
this  clause  is  the  recognition,  by  the  king,  of  the  old 
feudal  customs.  He  spoke  of  a  baronial  court.  The 
independence  of  the  judiciary  began  here,  though 
imperfectly,  and  there  was  still  union  of  the  executive 
and  legislative  functions  of  government  in  the  person 
of  the  king.  With  the  development  of  the  judiciary, 
and  the  growth  of  the  common  law  we  find  the  expres- 
sion creeping  in — ''due  process  of  law" — as  synony- 
mous with  ' '  the  law  of  the  land. ' '  Ideally  this  expres- 
sion "includes  actor,  reus,  judex,  regular  allegations, 
opportunity  to  answer,  and  trial  according  to  some 
settled  judicial  proceedings,  yet  this  is  not  universally 
true.  There  may  be,  and  we  have  seen  that  there 
are,  cases  under  the  law  of  England  after  Magna 
Charta,  and  as  it  was  brought  to  this  country  and  acted 
on  here,  in  which  process  in  its  nature  final  issues 
against  the  body,  lands,  and  goods  of  certain  public 
officers  without  any  such  trial. ' ' 2 

Originally  this  provision  was  to  guard  the  people 
against  the  acts  of  the  king,  chiefly  of  an  executive 
nature.  In  the  United  States  this  provision  is  equally 
applicable  to  the  acts  of  the  executive,  legislature,  or 
even  the  judiciary.  This  does  not  mean  that  there  is 
any  fixed  method  of  due  process  applicable  to  all  states 
in  the  union.  The  methods  and  laws  of  the  states 
differ  from  time  to  time,  and  between  different  states. 
The  provision  in  the  Fourteenth  Amendment  to  the  Con- 
stitution of  the  United  States  which  says:    "No1  state 

i  The    Origin     of     the    English  2  Murray 's    Lessee    v.    Hoboken 

Constitution,  p.  243.  Land  Co.,  18  Howard,  272. 


186  PUBLIC    HEALTH    ADMINISTRATION 

shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United 
States,  nor  shall  any  state  deprive  any  person  of  life, 
liberty,  or  property,  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws,"  does  not  give  to  the  courts 
of  the  United  States  the  entire  power  to  right  unjust 
decisions.  "Upon  all  questions  involving  merely  the 
conformity  of  the  act  with  the  constitution  of  the  state, 
the  decision  of  the  highest  state  court  is  final  and  con- 
clusive, however  unjust,  oppressive,  or  harsh  an  act 
may  have  been  upheld  by  it.3  But  when  the  state's 
decision  is  against  the  validity  of  a  right  claimed  under 
the  federal  Constitution  or  laws,  the  denial  of  due 
process  under  the  national  Constitution  becomes  a 
question. " 4  "  Due  process,  so  far  as  mere  procedure 
not  affecting  fundamental  rights  is  concerned,  is 
process  due  according  to  the  law  of  the  state,5  and 
the  determination  of  the  state  is  conclusive  as  to  what 
the  state  law  requires. ' ' 6 

In  other  words,  the  state  courts  decide  whether  the 
requirements  of  the  state  laws  have  been  complied 
with,  while  the  federal  court  passes  upon  the  validity 
of  the  statute  of  the  state,  determining  whether  or  not 
it  violates  the  fundamental  principles  of  the  federal 
Constitution.    This  is  brought  out  very  clearly  in  the 

3  Kirtland  v.  Hotchkiss,   100  TJ.  citing   Green    Bay   etc.    v.    Patten 

S.    491;    Missouri   Pac.    E.    Co.    v.  Paper  Co.,  172  U.  S.  58. 

Humes,  115  U.  S.  512;   Fallbrook  s  Walker  v.    Sauvinet,  92   U.   S. 

Irrigation  Dist.  v.  Bradley,  164  U.  90. 

S.  112 ;  French  v.  Barber  Asphalt  «  MeGehee,  Due   Process,   p.   37, 

Pav.  Co.,  181  U.  S.  324;  Hibben  v.  citing   Caldwell  v.    Texas,   137   TJ. 

Smith,    191    TJ.    S.    310;    Olsen   v.  S.  692;  Iowa  Cent.  E.  Co.  v.  Iowa, 

Smith,  195  TJ.  S.  332 ;  National  Cot-  160  TJ.  S.  389 ;  In  re  Krug,  79  Fed. 

ton  Oil  Co.  v.  Texas,  197  U.  S.  130.  Eep.  308. 

*  McGehee,   Due  Process,   p.    37, 


"due  process  of  law"  187 

following  dictum  of  the  Supreme  Court.7  "The  vice 
which  underlies  the  entire  argument  of  the  plaintiff 
in  error  arises  from  a  failure  to  distinguish  between 
the  essentials  of  due  process  of  law  under  the  Four- 
teenth Amendment  and  matters  which  may  or  may  not 
be  essential  under  the  terms  of  a  state  assessing  or 
taxing  law.  The  two  are  neither  correlative  nor  coter- 
minous. The  first,  due  process  of  law,  must  be  found 
in  the  state  statute,  and  cannot  be  departed  from  with- 
out violating  the  Constitution  of  the  United  States.  The 
other  depends  upon  the  law  making  power  of  the  state, 
and  as  it  is  solely  the  result  of  such  authority,  may 
vary  or  change  as  the  legislative  will  of  the  state  may 
see  fit  to  ordain.  It  follows  that  to  determine  the 
existence  of  the  one  (due  process  of  law)  is  the  final 
province  of  this  court,  while  the  ascertainment  of 
the  other  (that  is  what  is  merely  essential  under  state 
statute)  is  a  state  question  within  the  final  jurisdic- 
tion of  the  courts  of  last  resort  of  the  several  states. 
When,  then,  a  state  court  decides  that  a  particular 
formality  was,  or  was  not,  essential  under  the  state 
statute,  such  decision  presents  no  federal  question,  pro- 
viding always  the  statute  thus  construed  does  not  vio- 
late the  Constitution  of  the  United  States  by  depriv- 
ing of  property  without  due  process  of  law.  This  para- 
mount requirement  being  fulfilled,  as  to  other  matters, 
the  state's  interpretation  of  its  own  laws  is  con- 
trolling and  decisive. ' ' 8 

The  act  of  a  judge,  whether  in  a  judicial  or  minis- 
terial character,  but  in  his  official  capacity,  must  be 

7  Castillo  v.   MeConnico,   168  U.  160  U.   S.   389;   Allen  v.  Georgia, 

S.  674.  166  U.  S.  138;  Baltimore  Traction 

s  French    v.    Taylor,    199    U.    S.  Co.  v.  Belt  B.  Co.  151  U.  S.  138. 
274;    Iowa   Cent.   B.   Co.   v.   Iowa, 


188  PUBLIC    HEALTH   ADMINISTRATION 

in  harmony  with  due  process  of  law.9  Acting  as  a 
judge,  he  represents  the  state,  and  his  act  is  the  act 
of  the  state,  and  thus  comes  within  the  provisions  of 
this  Fourteenth  Amendment. 

§174.  Fifth  Amendment  restricts  nation;  Four- 
teenth, the  state.  Though  the  Fifth  Amendment,  which 
also  contains  the  words  "due  process  of  law,"  was  ac- 
cepted soon  after  the  adoption  of  the  Constitution,  this 
provision  applies  only  to  the  powers  of  the  federal  gov- 
ernment, and  by  no  means  binds  the  acts  of  the  individ- 
ual states.10  It  was  enacted  to  guard  against  the  possi- 
ble encroachments  of  the  central  government.  The 
Fourteenth  Amendment,  limiting  the  powers  of  the  in- 
dividual states,  was  added  after  the  civil  war,  and  it 
was  intended  simply  to  safeguard  the  rights  of  the 
freed  slaves.  The  wide  application  of  this  provision 
was  then  unexpected.  The  primary  use  of  the  provision 
has  faded  into  insignificance  compared  with  the  broad 
application  which  touches  every  part  of  the  country, 
and  all  classes  of  society.  That  it  was  a  wise  pro- 
vision is  evidenced  by  the  numerous  instances  in  which 
its  protection  has  been  demanded.  At  the  same  time 
it  must  be  remembered  that  without  this  provision  in 
the  federal  Constitution  we  had  similar  protection  in 
the  constitutions  of  almost  every  state  in  the  Union. 
Long  experience  of  English  speaking  peoples  had 
demonstrated  the  necessity  for  such  protection,  and 
the  reason  why  it  was  left  out  of  the  federal  Constitu- 
tion was  that  it  was  found  in  the  separate  constitutions 
of  the  individual  states. 

9  Ex  parte  Virginia,   100   U.   S.  250;   Boring  v.  Williams,  17  Ala. 

339;   Hovey  v.  Elliott,   167  U.   S.  516;  Withers  v.  Buckley,  20  How. 

409.  84. 

io  Barron  v.  Baltimore,  7  Peters 


"due  process  op  law"  189 

§175.  Pomeroy's  summary.  What,  then,  is  "due 
process  of  law?"  Pomeroy  says:11  "Due  process  of 
law  implies  primarily  that  regular  course  of  judicial 
proceeding  to  which  our  fathers  were  accustomed  at 
the  time  the  Constitution  was  framed;  and,  secondly, 
and  in  a  subordinate  degree,  those  more  summary 
measures,  which  are  not  strictly  judicial,  but  which 
had  long  been  known  in  the  English  law,  and  which 
were  in  familiar  use  when  the  Constitution  was 
adopted.  These  summary  measures  generally,  though 
not  universally,  form  a  part  of  that  mass  of  regula- 
tions which  many  writers  term  Police,  and  which  relate 
to  the  preservation  of  public  quiet,  good  order,  health, 
and  the  like.  *  *  *  The  summary  measures  which 
may  form  a  part  of  due  process  of  law  are  those  which 
have  been  admitted  from  the  very  necessities  of  the 
case,  to  protect  society  by  abating  nuisances,  preserv- 
ing health,  warding  off  imminent  danger,  and  the  like, 
when  the  slower  and  more  formal  proceedings  of  the 
courts  would  be  ineffectual."  It  will  be  noticed  that 
these  summary  measures  form  a  large  proportion  of 
the  activities  of  health  departments,  and  therefore  due 
process  of  law  cannot  be  too  carefully  studied  by  health 
officials.  "Due  process  is  not  necessarily  judicial 
process."  12 

§  176.  Legislation,  due  process  by.  Due  process  of 
law,  therefore,  is  now  frequently  applied  to  acts  of 
legislation,  the  underlying  principles  being  that  all 
persons  interested  may  have  an  opportunity  of  being 
heard,  and  that  legislation  does  not  represent  arbitrary 
acts  of  government.13 

u  Constitutional  Law,  See.  246.  Wheaton,  235;  People  v.  Smith,  21 

i2Reetz  v.  Michigan,  188  U.  S.  N.   Y.   595;   People  v.  Adirondack 

505.  Ry.  Co.,  160  N.  Y.  225,  affirmed  in 

is  Bank  of  Columbia  v.  Okley,  4  176   N.   Y.  335. 


190  PUBLIC    HEALTH    ADMINISTRATION 

"  Where  an  act  of  government  is  based  upon  the 
especial  circumstances  of  a  particular  case,  these 
maxims  require  that  the  individual  affected  have  an 
opportunity  to  be  heard ;  this  hearing  affords  him  some 
assurance  that  the  act  will  not  be  entirely  arbitrary 
or  without  cause.  Where  an  act  of  government  applies 
to  an  infinite  number  of  people  alike  and  thus  estab- 
lishes a  general  principle,  notice  to  every  individual 
affected  thereby  is  impossible  and  unnecessary  and  the 
generality  of  the  principle  is  supposed  to  be  a  guaranty 
against  its  being  arbitrary  and  unreasonable.  This  is 
the  fundamental  distinction  between  administration 
and  legislation ;  the  former  requires  notice  and  hearing 
which  with  regard  to  it  constitutes  due  process,  while 
the  latter  does  not.  But  it  does  not  follow  that  every 
act  of  legislation  is  due  process,  or  the  law  of  the 
land;  an  arbitrary  statute  is  neither.14  Notice  and 
hearing  even  in  administration  would  be  without  value 
if  it  did  not  assure  a  just  cause  for  proceeding  against 
the  individual;  the  essence  of  due  process  then  is  just 
cause,  and  this  must  underlie  every  act  of  legisla- 
tion. ' ' 15 

"Who  ever  by  virtue  of  his  public  position  under  a 
state  government,  deprives  another  of  life,  liberty,  or 
property,  without  due  process  of  law,  or  denies  or  takes 
away  the  equal  protection  of  the  laws,  violates  that 
inhibition,  and  as  he  acts  in  the  name  of  and  for 
the  state,  and  is  clothed  with  her  power,  his  act  is  her 
act.    Otherwise  the  inhibition  has  no  meaning,  and  the 

i*  Davidson  v.  New  Orleans,  96  ervelt  v.  Gregg,  12  N.  Y.  202 ;  Offi- 

U.  S.  97;  Zeigler  v.  S.  &  N.  Ala.  eerv.  Young,  5  Yerg.  (Tenn.)  320; 

R.  R.  Co.,  58  Ala.  594,  598 ;  Sears  Beyman  v.  Black,  47  Tex.  558. 

v.  Cottrell,  5  Mich.  251,  254;  Clark  is  Freund,  Police  Power,  20. 
v.  Mitchell,  64  Mo.  564,  578;  West- 


DUE    PROCESS    OF   LAW "  191 

state  has  clothed  one  of  her  agents  with  power  to  annul 
or  evade  it. ' ' 16 

§  177.  Laws  must  be  impartial.  Laws  are  to  be  the 
same  for  all  classes,  and  must  not  be  varied  for  par- 
ticular individuals  or  favored  classes.17  (§103.) 
Thus,  laws  which  forbid  the  intermarriage  of  whites 
and  blacks  are  a  proper  use  of  the  police  power,  and 
within  due  process  of  law,  though  they  do  interfere 
with  the  freedom  of  the  individual.18 

In  Bank  of  Columbia  v.  Okely,19  Mr.  Justice  John- 
son said,  relative  to  the  expression  per  legem  terrae, 
which  is  accepted  as  practically  synonymous  with  due 
process,  "As  to  the  words  from  the  Magna  Charta 
incorporated  into  the  constitution  of  Maryland,  after 
volumes  spoken  and  written  with  a  view  to  their  expo- 
sition, the  good  sense  of  mankind  has  at  length  settled 
down  to  this:  that  they  were  intended  to  secure  the 
individual  from  the  arbitrary  exercise  of  the  powers 
of  government,  unrestrained  by  the  established  prin- 
ciples of  private  rights  and  distributive  justice."  Due 
process  of  law  does  not  require  that  a  person  be 
exempted  from  compulsory  self  incrimination  in  the 
courts  of  a  state  that  has  not  adopted  the  policy  of 
such  exemption.20 

§  178.  Protection  from  state,  not  from  fellow  citizens. 
This  provision  of  ' '  due  process ' '  is  designed  to  protect 

is  Miller,    on    the    Constitution,  is  state  v.  Gibson,  36  Ind.  389; 

665;  Ex  parte  Virginia,  100  U.  S.  State  v.  Hairston,  63  N.  C,  451; 

339;   Leeper  v.   Texas,   135  U.   S.  Allis  v.  State,  42  Ala.  525. 

712.  19  4  Wheat.  235. 

it  Locke    on    Civil    Government,  20  Twining   v.   New  Jersey,   211 

Sec.   142;   State  v.  Duffy,  7  Nev.  U.  S.  78. 
349;  Lewis  v.  Webb,  3  Greenl.  326; 
Durham  v.  Lewiston,  4  Greenl.  140 ; 
Holden  v.  James,  11  Mass.  396. 


192  PUBLIC    HEALTH   ADMINISTRATION 

the  individual  citizen  from  every  form  of  govern- 
mental oppression,  rather  than  from  the  acts  of  his 
fellow  citizens.  "  It  is  a  guaranty  against  the  exertion 
of  arbitrary  and  tyrannical  power  on  the  part  of  the 
government  and  legislature  of  the  state,  not  a  guaranty 
against  the  commission  of  individual  offences;  and 
the  power  of  Congress,  whether  expressed  or  implied, 
to  legislate  for  the  enforcement  of  such  a  guaranty 
does  not  extend  to  the  passage  of  laws  for  the  suppres- 
sion of  crime  within  the  states.  The  enforcement  of 
the  guaranty  does  not  require  or  authorize  Congress 
to  perform  the  duty  that  the  guaranty  itself  supposed 
it  to  be  the  duty  of  the  state  to  perform,  and  which 
it  requires  the  state  to  perform."21 

We  find  very  wide  range  in  form  between  different 
operations,  each  of  which  are  recognized  as  due  process 
of  law.  The  ideal  form  is  court  proceeding,  in  which 
the  charges  are  definite,  and  each  side  has  ample  oppor- 
tunity for  presentation  of  his  case.  At  the  opposite 
extreme  we  find  summary  executive  administration,22 
in  which  there  may  possibly  be  no  previous  hearing  of 
objection,  and  no  previous  statement  as  to  intention. 
Between  these  extremes  we  find  the  provisions  of  legis- 
lation satisfying  the  claims  of  due  process.  Not  only 
may  we  find  a  difference  in  the  requirements  of  dif- 
ferent states,  and  different  times,  but  at  the  same  period 
of  time  and  in  the  same  territory  a  form  may  be  recog- 
nized as  due  process  with  regard  to  one  matter,  but  be 
denied  recognition  in  another.  To  those  accustomed 
to  deal  with  the  immutable  laws  of  nature,  such  uncer- 

21 U.  S.  v.  Cruiskshank,  1  Woods  22  Murray 's    Lessee   v.    Hoboken 

308,  affirmed  92  TJ.  S.  542;   U.  S.  L.    Co.,    18   How.   272;    Weimer  v. 

v.    Harris,    106    U.    S.    629;    Civil  Bunbury,  30  Mich.  201. 
Eights  Cases,  109  U.  S.  3. 


DUE   PROCESS   OF   LAW"  193 

tainty  as  seems  apparent  in  decisions  as  to  what  is, 
or  is  not  due  process,  may  be  confusing,  especially  if 
one  fail  to  grasp  the  underlying  principles.  Since 
most,  if  not  all,  of  the  operations  of  health  depart- 
ments are  under  the  general  police  power,  and  since 
it  is  in  administering  police  power  that  the  extreme 
minimum  of  due  process  must  sometimes  be  allowed, 
it  follows  that  it  is  of  great  importance  that  in  this 
work  the  requirements  of  the  due  process  shall  be 
recognized. 

§  179.  Who  are  protected?  Who  are  protected  under 
the  Fourteenth  Amendment?  The  words  say  "any 
person, ' '  and  this  is  interpreted  by  the  courts  as  includ- 
ing nonresidents,  aliens,  and  even  the  persons  of  the 
enemy.23  The  alien  within  the  limits  of  this  country 
is  entitled  to  the  ' '  same  regular  course  of  judicial  pro- 
ceedings as  is  afforded  to  citizens,  and  he  cannot  be 
deprived  of  either  (life  or  liberty)  upon  a  mere  execu- 
tive hearing. ' ' 24 

§180.  Exclusion  acts.  "Every  sovereign  state  has, 
as  inherent  in  its  sovereignty,  the  right  to  forbid  the 
entrance  of  foreigners  within  its  dominions,  or  to 
admit  them  only  in  such  cases  and  upon  such  condi- 
tions as  it  may  see  fit  to  prescribe." 25  Such  exclusion 
must  be  based  upon  legislation,  and  the  enforcement  of 
the  legislation  may  be  left  to  executive  officers.26  Hav- 
ing been  left  to  executive  officers,  unless  expressly  pro- 
vided by  legislation,  a  court  cannot  examine  into  the 

zsBuford    v.    Speed,    11    Bush  citing  Chae  Chan  Ping  v.  U.   S., 

(Ky.)  338;  IT.  S.  v.  Williams,  194  130  U.  S.  581;  Nishimura  Ekiu  v. 

U.  S.  279;  IT.  S.  v.  Ju  Toy,  198  U.  IT.  S.,  142  IT.  S.  659;  IT.  S.  v.  Ju 

S.  253 ;  Lem  Moon  Sing  v.  U.  S.,  Toy,  198  U.  S.  253. 

158  U.  S.  538.  26  Japanese    Immigration    Case, 

24McGehee,  Due  Process,  192.  189  U.  S.  86;  U.  S.  v.  Williams, 

as  McGehee,    Due    Process,    190,  194  U.  S.  279. 


194  PUBLIC   HEALTH   ADMINISTRATION 

evidence  upon  which  the  executive  acted.27  This  is 
important  from  a  public  health  standpoint.  If  an  alien 
be  excluded  on  account  of  danger  to  public  health,  by 
an  officer  of  the  inspection  sendee,  the  finding  of  such 
officer  is  final,  excepting  appeal  within  the  Depart- 
ment. Appeal  to  the  courts  is  not  possible  in  the  case 
of  an  alien,  in  this  matter,  until  it  has  been  carried  to 
the  head  of  the  Department  in  which  the  service  may 
be.2S  In  IT.  S.  v.  Ju  Toy,29  after  an  appeal  to  the  Secre- 
tary of  Commerce  and  Labor,  application  was  made  to 
the  District  Court  for  a  writ  of  habeas  corpus.  Seem- 
ingly upon  new  evidence  the  court  found  that  the 
petitioner  was  a  native  born  citizen  of  the  United 
States.  The  case  was  appealed,  and  reversed  by  the 
Supreme  Court  which  claimed  that  in  the  absence  of 
abuse  of  discretion  by  the  executive  department,  the 
case  should  have  been  decided  upon  its  merits,  without 
the  introduction  of  new  evidence.  While  aliens  may 
be  excluded,  yet  so  long  as  they  are  living  within  our 
dominions  they  are  entitled  to  every  protection  of  due 
process,  just  as  much  as  are  citizens.  Clandestine 
entry,  or  such  temporary  residence  as  to  be  in  no  real 
sense  a  part  of  our  population,  does  not  bring  a  person 
within  the  protection  of  this  provision  of  the  Consti- 
tution. A  law  is  valid  empowering  an  executive  officer, 
whose  action  in  the  case  is  final,  to  order  the  deporta- 
tion of  an  alien  who  has  resided  in  this  country  less 
than  one  year.30 

27  Nishimura  Ekiu  v.  U.  S.,  142  29  198  TJ.  S.  253. 

U.  S.  659 ;  Fong  Tue  Ting  v.  TJ.  so  Japanese    Immigration    Case, 

S.,  149  TJ.  S.  711.  189  U.  S.  86,  approving,  U.  S.  v. 

28  Habeas  corpus  case,  TJ.  S.  v.  Yamaska,  (C.  C.  A.)  100  Fed.  Eep. 
Sing  Tuck,  194  TJ.  S.  161,  reversing  404;  U.  S.  v.  Ju  Toy,  198  U.  S. 
(C.  C.  A.)  128  Fed.  rep.  592.  253. 


"due  process  of  law"  195 

But  the  exclusion  laws  must  be  confined  to  aliens. 
They  can  not  be  applied  to  citizens  of  the  United 
States.31  A  new  class  of  questions  has  arisen  lately, 
with  regard  to  those  dependencies  which  the  American 
nation  has  recently  taken  under  its  protection.  It  has 
been  held  that  though  the  residents  of  Porto  Bico,  for 
example,  are  not  citizens,  neither  are  they  aliens.32  A 
distinction  is  thus  made  between  territory  annexed  to, 
or  included  under,  the  government  of  the  United 
States,  and  that  which  is  in  fact  a  part  of  the  nation. 
While  denying  to  the  citizens  of  these  islands  the 
status  of  citizens  of  the  United  States,  they  are  pro- 
tected from  the  operations  of  the  exclusion  acts.33  The 
equality  of  rights  which  an  alien  may  acquire  by  virtue 
of  residence  in  this  country,  is  no  protection  against 
his  exclusion  if  he  attempt  to  again  enter  the  country 
after  a  temporary  absence.34  Because  it  violates  the 
principles  of  due  process,  in  that  without  such  a  judi- 
cial determination  being  required  as  would  be  requisite 
in  the  case  of  citizens,  Congress  may  not,  to  give  force 
to  an  exclusion  act,  impose  a  penalty  of  confinement  at 
hard  labor,  to  be  applied  by  an  executive  officer  upon 
one  unlawfully  attempting  to  enter  the  country.  Tem- 
porary detention  and  confinement  without  judicial 
trial  may  be  permissible,  as  it  is  sometimes  neces- 
sary, in  the  operation  of  exclusion  acts.35    It  therefore 

31  U.  S.  v.  Wong  Kim  Ark,  169  33  Gonzales  v.  Williams,  192  U. 
U.  S.  649.  S.  1. 

32  Gonzales  v.  Williams,  192  U.  34  Lem  Moon  Sing  v.  U.  S.,  158 
S.  1;  Dorr  v.  U.  S.,  195  U.  S.  138;  U.  S.  538. 

Eassmussen  v.  U.  S.,  197  U.  S.  516;  35  Wong  Wing  v.  U.  S.,  163  U. 

Goetze  v.  U.  S.,  182  U.  S.  221;  De-      S.  228;  U.  S.  v.  Williams,  194  U. 
Lima  v.  Bidwell,  182  U.  S.  1 ;  Doo-      S.  280. 
ley  v.  U.  S.,  182  U.  S.  222 ;  Arm- 
strong v.   U.    S.,    182   U.   S.   243; 
Downes  v.  Bidwell,  182  U.  S.  244. 


196  PUBLIC    HEALTH   ADMINISTRATION 

follows  that  the  legal  detention  of  those  excluded  for 
sanitary  reasons  is  valid,  until  such  time  as  they  may 
be  deported. 

§  181.  State  exclusion  acts.  The  power  of  the  indi- 
vidual states  thus  to  exclude  immigrants,  is  much  more 
limited.  Thus  state  laws  prohibiting  the  entrance  of 
colored  seamen  have  been  declared  unconstitutional 
as  an  interference  with  and  constraint  upon  com- 
merce.36 Early  cases  in  state  courts  sustained-  the 
right  of  the  states  to  exclude  free  negroes  from  settle- 
ment within  those  states,37  but  unquestionably  such 
enactments  would  not  today  be  sustained.  However, 
there  are  certain  classes  of  cases  in  which  the  sov- 
ereign right  of  the  states,  under  the  police  power,  will 
permit  exclusion,  and  most  of  these  cases  permit  exclu- 
sion by  executive  officers.  States  may  exclude  crimi- 
nals, vicious  persons,  mental  defectives,  paupers,  and 
those  afflicted  with  communicable  diseases.38 

§  182.  Corporations  are  protected.  Corporations 
doing  business  within  a  state  are  protected  under  the 
Fourteenth  Amendment.39  The  state  may  sometimes 
discriminate  against  foreign  corporations.40     But,  a 

36  1  Op.  Att.  Gen.,  659;  The  Wireless  Tel.  Co.  v.  Superior  Ct. 
Cynosure,  1  Sprague,  88,  Fed.  San  Francisco,  153  Cal.  533;  Ward 
Cases  No.  3529.  Lumber   Co.    v.    Henderson   White 

37  Nelson  v.  People,  33  111.  390;  Mfg.  Co.,  107  Va.  626;  St.  Clair 
Hatwood  v.  State,  18  Ind.  492;  v.  Cox,  106  U.  S.  356;  Barrow 
Pendleton  v.  State,  6  Ark.  509.  Steamship  Co.  v.  Kane,  170  U.  S. 

38  Passenger  eases,  7  How.  283;  100;  Philadelphia  F.  Ass.  v.  New 
Henderson  v.  Mayor,  92  U.  S.  259;  York,  119  U.  S.  110;  Pembia  Cons. 
Chy  Lung  v.  Freeman,  92  U.  S.  Silver  Co.  v.  Pennsylvania,  125  U. 
275;  R.  R.  Co.  v.  Husen,  95  U.  S.  S.  181. 

465.  40  Blake  v.  McClurg,  172  U.   S. 

39  Smith  v.  Ames,  169  U.  S.  466 ;  259 ;  Sully  v.  American  Nat.  Bank, 
C.  R.  I.  &  P.  R.  Co.  v.  State,  86       178  U.  S.  289. 

Ark.     412;      American     DeForest 


'due  process  op  law"  197 

municipal  corporation  is  not  within  the  intendment  of 
the  Constitution  in  such  a  sense  that  the  legislature 
may  not  dispose  of  the  revenues  of  the  city  with  discre- 
tion.41 

§  183.  Property  is  protected.  The  protection  of  the 
Constitution  covers  all  property.42  "The  right  of 
property  preserved  by  the  Constitution,  is  the  right 
not  only  to  possess  and  enjoy  it,  but  also  to  acquire  it 
in  any  lawful  mode,  or  by  following  any  lawful  indus- 
trial pursuit  which  the  citizen,  in  the  exercise  of  the 
liberty  guaranteed,  may  choose  to  adopt.  Labor  is  the 
primary  foundation  of  all  wealth.  The  property  which 
each  one  has  in  his  own  labor  is  the  common  heritage. 
And  as  an  incident  to  the  right  to  acquire  property,  the 
right  to  enter  into  contracts  by  which  labor  may  be 
employed  in  such  ways  as  the  laborer  shall  deem  most 
beneficial,  and  of  others  to  employ  such  labor,  is  neces- 
sarily included  in  the  constitutional  guaranty."43 
Such  occupations  as  are  not  open  to  all,  but  are  of  such 
a  nature  that  a  license  may  be  required  under  police 
power,  are  not  property.44  Hence  a  license  to  sell  milk 
is  not  a  property  right.45  Neither  is  there  a  property 
right  in  a  public  office,  which  is  protected  by  this  con- 
stitutional guaranty.46 

On  the  other  hand,  the  practice  of  medicine  presup- 
poses years  of  preparation  and  education,  involving 

4i  City    of    Chicago    v.    Knobel,  44  People  v.  Sewer,  Water,  and 

232  111.  112.  Street  Com.,  90  App.  Div.  555;  86 

42  State  v.  Deny,  171  Ind.   18;  N.  Y.  445. 

Bloom  v.  Koch,  63  N.  J.  Eq.  10.  « People     v.     Department     of 

4s  Braceville  Coal  Co.  v.  People,  Health,  City  of  New  York,  189  N. 

147  111.  66;   also  see  Matthews  v.  Y.  187. 

People,    202    111.    389;    Massie    v.  46  Taylor    v.    Backham,    178    U. 

Cessna,  239  111.  352 ;  Gray  v.  Build-  S.  548 ;  Butler  v.  Pennsylvania,  10 

ing  Trades  Council,  91  Minn.  171.  How.  402. 


198  PUBLIC    HEALTH   ADMINISTRATION 

the  expenditure  of  much  capital.  The  practice  of  a 
physician,  therefore,  is  a  property  right  which  may  not 
be  taken  from  him  without  due  process  of  law.47  The 
same  is  true  relative  to  the  profession  of  law, 48  and  of 
the  clergy.49  This  does  not  prevent  the  regulation 
of  such  callings  by  requiring  examination  and  license.50 
Neither  is  it  taking  property  without  due  process  of 
law  to  require  the  payment  of  examination  fees.51 
Similarly  the  expense  of  commissions  entrusted  with 
the  supervision  of  certain  classes  of  business  may  be 
charged  to  those  lines  of  business.52  Similarly,  it  is 
not  a  violation  of  this  principle  to  assess  sanitary 
improvements  against  the  owners  of  tenement  houses 
in  which  the  improvements  are  required, 53  or  to  assess 
railroad  corporations  for  constructing  and  maintain- 
ing improvements  for  the  protection  of  the  public 
safety.54 

§  184.  Regulation  includes  continued  control;  medi- 
cal licenses.  The  right  of  the  state  to  regulate  the 
practice  of  medicine,  for  example,  does  not  end  with 
the  granting  of  a  license.  Though  Professor  Freund 
chooses  to  consider  that  the  establishment  in  the  prac- 
tice of  medicine  creates  a  "vested  right,"55  the  deci- 

47  Smith  v.  St.  Board  of  Medical  52  Charlotte,  etc.,  R.  Co.  v.  Gibbes, 
Examiners,  Iowa,  117  N.  W.  R,  142  U.  S.  386;  N.  Y.  v.  Squire,  145 
1116;  Matthews  v.  Hedlund,  82  U.  S.  175;  Consol.  Coal  Co.  v.  Illi- 
Neb.  825;   Dent  v.  West  Va.,  129  nois,  185  U.  S,  203. 

U.  S.  114.  53  Health      Dept.       v.      Trinity 

48  Ex  parte  Garland,  4  Wall.  333.  Church,  145  N.  Y.  32. 

49  Cummings  v.  Missouri,  4  Wall.  5i  N.  Y.,  etc.,  R.  Co.  v.  Bris- 
277.  tol,    151    U.    S.    556    (eliminating 

so  Reetz  v.  Michigan,  188  U.  S.  grade  crossings) ;  Chicago,  etc.,  R. 

505;  Hawker  v.  New  York,  170  IT.  Co.    v.    Nebraska,    170    U.    S.    57 

S.  189;  Dent  v.  West  Va.,  129  U.  (maintenance  of  viaduct). 

S.  114.  55  Police  Power,  546. 

si  Nashville,  etc.,  E.  Co.  v.  Ala., 
128  U.  S.  96. 


"due  process  of  law"  199 

sions  of  the  courts  seem  to  be  opposed  to  his  theory. 
Thus  we  find  the  supreme  court  of  Ohio  saying:56 
' '  The  distinction  between  the  right  to  establish  a  prac- 
tice and  the  right  to  pursue  a  practice  already  estab- 
lished seems  to  be  inadmissible.  By  what  process  of 
reasoning  could  it  be  maintained  that  the  right  to  enjoy 
property  should  be  esteemed  more  sacred  than  the  right 
to  make  contracts  by  which  property  might  be 
acquired  f ' ' 

This  power  to  continue  in  the  regulation  of  the 
practice  of  medicine  was  emphatically  upheld  as  a 
valid  use  of  police  power  by  the  Supreme  Court  of  the 
United  States,  three  justices  dissenting.  The  legisla- 
ture of  the  state  of  New  York  had  passed  a  statute 
in  1893,  providing  that  no  person  should,  after  convic- 
tion of  felony,  attempt  to  practice  medicine,  on 
penalty  of  fine  and  imprisonment.  One  Hawker  was 
at  that  time  practicing  medicine  in  the  state.  He  had 
been  convicted  of  a  felony  in  1878.  In  1896  he  was 
prosecuted  for  practicing  illegally  under  the  statute 
of  1893.  He  was  convicted,  and  the  supreme  court  of 
the  state  sustained  the  conviction.57  The  case  was  then 
carried  to  the  United  States  Court.  It  was  claimed 
that  the  statute  violated  the  Constitution  of  the  United 
States  in  that  it  was  an  ex  post  facto  law,  and  that  it 
served  to  deprive  the  petitioner  of  a  valuable  property 
right  without  due  process  of  law.  It  was  also  claimed 
that  the  operation  of  the  statute  served  to  increase 
the  penalty  attached  to  the  former  conviction.  The 
opinion  of  the  court,  written  by  Justice  Brewer,  held 
that  in  this  case  the  law  did  not  serve  as  a  punishment 

56  State  v.  Gravett,  65  Ohio,  289. 
5"  People  v.  Hawker,   152  N.   Y. 
234. 


200  PUBLIC   HEALTH  ADMINISTRATION 

for  crime,  but  that  conviction  of  crime  was  competent 
evidence  as  to  the  character  of  the  person.58  "-If,*"* 
said  the  court,  "a  state  may  require  good  character  as 
a  condition  of  the  practice  of  medicine,  it  may  right- 
fully determine  what  shall  be  the  evidence  of  that  char- 
acter. We  do  not  mean  to  say  that  it  has  an  arbitrary 
power  in  the  matter,  or  that  it  can  make  a  conclusive 
test  of  that  which  has  no  real  relation  to  character ;  but 
it  may  take  whatever,  according  to  the  experience  of 
mankind,  reasonably  tends  to  prove  the  fact  and  make 
it  a  test.59  Whatever  is  ordinarily  connected  with  bad 
character,  or  indicative  of  it,  may  be  prescribed  by  the 
legislature  as  conclusive  evidence  thereof.  It  is  not 
the  province  of  courts  to  say  that  other  tests  would  be 
more  satisfactory,  or  that  the  naming  of  other  qualifi- 
cations would  be  more  conducive  of  the  desired  result. 
These  are  questions  for  the  legislature  to  determine. ' ' 
(See  §§427,  428.) 

§  185.  Wild  animals  are  protected.  Wild  animals, 
that  is  animals  ferae  naturae,  are  considered  as  the 
property  of  the  state  until  they  shall  have  been  reduced 
to  actual  possession  by  killing,  or  by  subduction.60 
They  then  become  recognized  as  qualified  property. 
Qualified  property  is  such  that  possession  is  peculiarly 
under  the  superior  rights  of  the  state,  or  the  interde- 
pendence of  several  properties  upon  each  other. 
Hence,  animals  ferae  naturae  may  be  protected  by 
statutes  prescribing  times  and  conditions  for  the  kill- 
ing of  game,61  even  when  raised  artificially,  without 

58  Hawker  v.  New  York,  170  U.  ^  Com.  v.  Davis,  162  Mass.  510; 

S.  189,  195.  Davis  v.  Massachusetts,  167  U.  S. 

=9  Citing,   County   Seat   v.    Linn  43. 

Co.,  15  Kan.  500.  "  Geer  v.  Conn.  161  U.  S.  519. 


"due  process  of  law"  201 

conflicting  with  due  process.62  Since  there  can  be  no 
property  right  in  game  when  the  statute  forbids  the 
killing,  game  found  in  possession  out  of  season  may  be 
summarily  destroyed  without  violating  due  process. 
Statutes  sometimes  provide  for  the  selling  of  such 
game,  probably  upon  the  supposition  that  dead  game 
is  not  a  nuisance  per  se.  Then  special  judicial  pro- 
ceedings are  required.63 

§  186.  Dogs.  Another  form  of  qualified  property  is 
found  in  dogs.  The  common  law  does  not  distinguish 
between  valuable  breeds  and  the  common  cur.  It  is 
considered  that  the  owner  of  a  valuable  dog  will  take 
such  precautions  as  will  place  him  under  the  protection 
of  the  law  as  property,  and  not  run  the  risk  of  having 
him  considered  as  an  animal  fera  natura.  Further, 
by  reason  of  their  depredations  upon  flocks,  as  of 
sheep,  or  by  viciousness,  or  by  danger  of  infective  dis- 
eases, such  as  rabies,  dogs  are  liable  to  become  nuis- 
ances. That  worthless  dogs  may  be  destroyed,  and 
that  dogs  permitted  to  live  may  receive  care  and  super- 
vision under  the  police  power  of  the  state  it  is  quite 
customary  that  licenses  be  required  and  that  other 
regulations  be  complied  with.  These  are  not  held  to 
interfere  with  due  process.  (§  210.)  Non-compliance 
with  such  regulations  withdraws  the  protection  of  the 
state,  and  such  dogs  may  be  killed  without  further 
legal  process,64  and  without  giving  the  owner  a  right 
of  action  for  damages.  Laws  requiring  registration  of 
dogs,  or  requiring  them  to  wear  a  collar  or  muzzle,  and 

62  Common,  v.  Gilbert,  160  Mass.  Smith  v.  State,  115  Ind.  611 ;  State 
157.  v.  Rodman,  58  Minn.  393. 

63  Sullivan  v.  Oneida,  61  111.  242;  64  Sentell  v.   New  Orleans,   etc., 
Phelps    v.    Raeey,    60    N.    Y.    10;  E.  Co.,  166  U.  S.  698. 


202  PUBLIC   HEALTH   ADMINISTRATION 

authorizing  their  destruction  if  found  running  without 
these  provisions  are  constitutional.05 

§187.  Property  created  contrary  to  law  not  pro- 
tected. Property  created  contrary  to  law  is  not  pro- 
tected by  due  process.  Thus  a  house  so  constructed 
may  be  summarily  destroyed.66  There  is,  however,  a 
property  right  in  the  material  of  which  the  building  is 
constructed,  and  such  material  must  be  saved  for  the 
owner.  It  has  further  been  held  by  the  Pennsylvania 
court  that  a  house  thus  constructed  is  not  a  nuisance 
per  se.67 

§  188.  Property  inherently  harmful,  not  protected. 
There  can  be  no  right  of  property  in  things  which  are 
inherently  harmful  or  evil  because  of  their  pernicious 
effect,  such  as  gambling  devices,  counterfeit  money  and 
the  apparatus  for  making  the  same,  burglars*  tools, 
and  obscene  publications.  Though  they  have  a  com- 
mercial value  such  substances  may  be  taken  and  sum- 
marily destroyed,  without  violation  of  due  process.68 
Similarly  it  is  held  that  there  is  no  violation  of  con- 
stitutional rights  in  the  seizure  and  destruction  of  food 
which  is  unfit  for  human  consumption,  though  exposed 
for  sale;69  or  property  infested  with  pests  injurious 
to  plant  or  human  life ; 70  or  horses  afflicted  with 
glanders.71     (§§158,  171). 

es  Cranston  v.  Mayor,  61  Ga.  572,  71  Ark.  138;  Woods  v.  Cottrell,  55 

eeEichenlaub  v.  St.  Joseph,  113  W.  Va.  476;  Frost  v.  People,  193 

Mo.   395;    King  v.  Davenport,   98  111.  635. 

111.  305 ;   Hine  v.  New  Haven,  40  69  N.  A.  Cold  Storage  Co.  v.  Chi- 

Conn.  478.  eago,  211  U.  S.  306. 

67  Fields  v.  Stokley,  99  Pa.  St.  ™  Los  Angeles   Co.   v.    Spencer, 

306.  126  Cal.  670. 

es  State  v.  Derry,   171  Ind.  18;  7 1  Chambers  v.  Gilbert,   17  Tex. 

J.  B.  Mullen  v.  Mosley,  13  Idaho,  Civ.  App.  106. 
457  j  Garland  Novelty  Co.  v.  State, 


"due  process  of  law"  203 

§  189.  Nuisance  per  se.  ' '  Since  a  nuisance  per  se 
(§  199)  is  a  source  of  present  and  continuing  danger, 
its  destruction  does  not  require  previous  notice  to  the 
owner.  The  rightfulness  of  the  destruction  presup- 
poses that  the  condition  of  the  property  is  as  a  matter 
of  fact  harmful  or  objectionable,  and  the  ex  parte 
finding  of  the  authorities  does  not  determine  this  fact 
conclusively  against  the  owner.  If  he  cannot  get  his 
hearing  in  advance,  he  must  get  it  afterward;  i.  e.,  he 
has  a  right  to  bring  action  for  the  destruction  of  his 
property  and  the  authorities  who  are  sued  must  justify 
their  act.72  If  the  property  proves  to  have  been  sound 
and  harmless,  the  owner  is  entitled  to  compensation.73 
Since  officers  thus  must  act  at  their  peril,  they  are  not 
apt  to  exercise  their  power  of  abatement,  and  this  has 
been  urged  as  a  reason  why  their  determination  should 
be  held  to  be  conclusive;  but  the  supreme  court  of 
Massachusetts,  in  sustaining  their  liability,  practically 
held  that  a  destruction  of  sound  property  without  com- 
pensation would  be  unconstitutional."74 

Infected  rags  are  a  nuisance,  but  not  a  nuisance  per 
se.  They  may  be  disinfected.  Summary  destruction 
then  is  the  taking  of  property.75  Owners  may  be 
required  to  pay  for  the  necessary  disinfection.76 

§  190.  Right  to  a  hearing.  It  cannot  be  too  strongly 
brought  to  the  attention  of  the  public  health  executive, 
for  his  own  protective  guidance,  that  every  man  has 

f2  Citing,  Savannah  v.  Mulligan,  74  Freund,  Police  Power,  521. 

95  Ga.  323 ;  People  ex  rel.  Copcutt  7D  Train   v.   Boston  Disinfecting 

v.  Yonkers,  140  N.  Y.  1 ;  Newark,  Co.,  144  Mass.  523. 

etc.,  E.  Co.  v.  Hunt,  50  N.  J.  L.  308.  ™  Train   v.   Boston   Disinfecting 

73  Citing,   Miller  v.   Horton,   152  Co. ;   Harrison  v.   Mayor  of  Balti- 

Mass.   540;    Pearson  v.   Zehr,    138  more,  I  Gill,  264. 
111.  48. 


204  PUBLIC    HEALTH   ADMINISTRATION 

a  right  to  his  day  in  court.  If  that  day  does  not  come 
before  acton  is  had  by  the  executive,  it  must  come  later, 
and  if  it  shall  appear  that  the  act  was  without  the 
authority  of  law,  it  will  be  at  the  peril  of  the  officer. 
"Every  action  of  administration  is  subject  to  the  law 
of  the  land,  in  that  some  officer  of  the  administration 
must  answer  in  his  own  person  if  anything  be  done  by 
it  without  the  authority  of  positive  law. ' ' 77  But, ' '  The 
officer  cannot  be  responsible  for  any  action  done  in  pur- 
suance of  discretion  vested  in  him  by  law,  whatever 
that  action  may  be. ' ' 7S  Thus,  when  an  officer  in  Knox- 
ville  took  bedding  infected  from  a  small-pox  patient 
and  burned  it,  action  was  brought,  not  for  the  bedding, 
but  for  the  offensiveness  of  the  smoke.  Mr.  Justice 
Freeman  said : 79  "If  the  act  was  done  by  public 
authority  or  sanction,  and  in  good  faith,  and  was  done 
for  the  public  safety,  and  to  prevent  the  spread  of  dis- 
ease, and  such  means  used  as  are  usually  resorted  to 
and  approved  by  medical  science  in  such  cases,  and 
was  done  with  reasonable  care,  and  regard  for  the 
safety  of  others,  then  the  parties  were  justified  in  what 
they  did. " 

Though  in  Miller  v.  Horton 80  the  court  did  hold  the 
officers  practically  for  a  mistake  in  diagnosis,  the 
finality  of  the  diagnosis  of  the  official  has  generally 
been  recognized.81  For  efficiency  of  administration82 
this  point  should  be  covered  by  statute.  The  indi- 
vidual would  still  be  protected  from  official  oppression 

77  Wyman,    Administrative   Law,  *o  152  Mass.  540. 

7_  si  Brown  v.  Purdy,  8  N.  Y.  St. 

78  Seymour  v.  U.  S.,  2  Appeals,  143 ;  Kennedy  v.  Board  of  Health, 
D.  C.  240.  2  Pa.  360. 

79  State  v.  Knoxville,  12  Lea,  «2  Jew  Ho  v.  Williamson,  103 
146.  Fed.   10. 


"due  process  of  law"  205 

if  it  be  shown  that  the  action  of  the  official  be  arbitrary, 
or  actuated  by  unworthy  motives. 

§  191.  Property  under  eminent  domain  and  police 
power  contrasted.  There  is  a  marked  difference  be- 
tween the  rights  over  property  under  eminent  domain, 
and  those  under  police  power.  In  the  former  case  the 
state  (or  municipality),  must  pay  a  reasonable  price 
for  property  taken.  Property  taken  under  police  power 
is  not  considered  strictly  as  taken,  but  the  owner  is 
deprived  of  the  use  of  his  possessions,  it  may  be  per- 
manently, as  when  destroyed.  It  is  simply  protecting 
the  public  from  the  misuse  of  his  property  by  the  indi- 
vidual. He  holds  his  property  under  the  condition  that 
he  must  not  so  use  it  as  to  work  harm  to  others.  If  it 
be  infectious,  or  if  he  be  offering  for  sale  food  which 
is  not  wholesome,  the  state  may  take  such  means  as 
seem  necessary  to  prevent  harm.  So  ' '  when  a  healthy 
horse  is  killed  by  a  public  officer,  acting  under  a  gen- 
eral statute,  for  fear  that  it  should  spread  disease,  the 
horse  would  seem  to  be  taken  for  public  use,  as  truly 
as  if  it  were  seized  to  drag  an  artillery  wagon.  The 
public  equally  appropriated  it,  whatever  they  do  with 
it  afterwards.'' 83  Such  an  interpretation  places  the 
taking  under  the  power  of  eminent  domain,  and  relieves 
the  officer  from  an  individual  liability.  Police  power 
is  shown  in  the  regulation  of  the  use  of  property;  emi- 
nent domain,  in  the  taking  of  it  for  common  use  or 
benefit. 

Garbage  is  not  a  nuisance  per  se,  but  has  often  a 
money  value.  A  householder  may  be  required  to  bear 
the  expense  of  removal  to  the  place  for  cremation.84 

S3  Miller    v.    Horton,    152    Mass.  «*  Cal.  Eed.  Co.  v.  Sanitary  Re- 

540.  duction  Works,  199  U.  S.  306. 


206  PUBLIC    HEALTH   ADMINISTRATION 

A  municipal  ordinance  or  regulation,  making  a  con- 
tract for  the  removal  of  garbage  and  prohibiting  other 
methods,  or  persons  from  removing  garbage,  creates  a 
monopoly;  and  such  ordinance  is  unconstitutional  as 
a  violation  of  due  process,  unless  such  power  be  given 
to  the  municipality  by  the  statutes  of  the  state.83  Such 
an  ordinance  is  in  line  with  the  principle  of  subordi- 
nating the  use  of  property  to  the  general  good.  There- 
fore a  statute  granting  to  municipalities  such  power  is 
constitutional.86 

In  a  case  where  a  house  is  quarantined,  and  other 
persons  are  subjected  to  such  regulations  as  seem 
necessary,  it  is  held  that  the  house  has  not  been  taken 
possession  of  by  the  health  authorities,  and  no  com- 
pensation is  due.87 

§  192.  Due  process  by  executive.  The  most  important 
elements  in  due  process  are  notice  and  hearing.  As 
previously  stated  the  hearing  may  come  after  the  fact 
— as  when  a  house  is  destroyed  to  protect  the  com- 
munity from  the  spread  of  the  conflagration.  There  is 
no  time  in  which  to  inquire  into  ownership,  nor  for  a 
consideration  of  the  value  of  the  property  destroyed, 
and  for  the  setting  forth  the  various  arguments  of  the 
case.  Though  in  such  cases  the  owner  has  no  legal 
recourse  for  the  value  of  property  destroyed,88  the 
act  will  be  held  to  have  been  no  violation  of  this  pro- 
vision of  due  process  of  law. 

ss  Landberg  v.  Chicago,  237  111.  88  Case  of  Prerogative,  12  Eep. 

112.  12;  Mouse's  Case,  12  Rep.  63;  Am. 

se  Cal.  Red.  Co.  v.  San.  Red.  Print  Works  v.  Lawrence,  3  Zabr. 
Works,  199  U.  S.  306;  Gardner  v.  590;  Surocco  v.  Geary,  3  Cal.  69; 
Michigan,  199  U.  S.  325.  Pollock,  Torts,  IV,  11. 

87  Spring  v.  Hyde  Park,  137 
Mass.  554.  See  also  Hersey  v. 
Chapin,  162  Mass.  176. 


"due  process  of  law"  207 

The  determination  of  the  necessity  for  action  fre- 
quently depends  upon  the  judgment  of  the  executive 
officer.  In  practice  the  notice  is  given  as  a  notice  to 
abate  a  nuisance.  If  the  owner  has  objections  he  should 
then  present  them,  and  thus  have  his  hearing  before 
the  executive.  The  affirming  that  a  thing  is  a  nuisance 
does  not  make  it  so,  even  when  the  affirmation  be  made 
by  officers  empowered  so  to  do.  They  may  decide, 
after  consideration  that  it  is  a  nuisance,  but  that  deci- 
sion implies  that  the  other  side  has  had  an  opportunity 
of  being  heard.  To  declare  the  possession  of  inoffensive 
property  a  nuisance  leaves  the  case  open  for  a  judicial 
hearing.89  "In  abating  a  nuisance  under  such  an 
order,  local  boards  or  officers  act  at  their  peril,  and 
if  it  is  proved  that  they  have  overstepped  the  bounds 
of  reasonable  police  action,  the  order  will  be  no  pro- 
tection to  them.  When  they  are  in  doubt  whether  the 
order  is  within  their  authority,  they  may  always  have 
the  matter  determined  in  advance  by  the  courts  in  a 
proceeding  to  restrain,  or  abate,  a  nuisance.  But  they 
need  not  do  so,  and  the  exigencies  of  the  situation  may 
justify  immediate  action.,,9° 

§193.  Health  administration.  Applying  the  fore- 
going to  health  administration,  it  must  appear  that  in 
the  absence  of  statutory  enactment,  clearly  giving  and 
denning  such  power,  the  act  of  a  health  officer  in  quar- 
antining the  members  of  a  household  because  one  of 
its  members  is  afflicted  with  an  infectious  disease,  is 
essentially  unlawful,  excepting  only  for  such  a  disease 

89  Pearson  v.  Zehr,  138  111.  48;  Y.  140;  People  v.  Board  of  Health, 

Loeash  v.  Koehler,  144  Ind.  278;  140  N.  Y.  1;  Dillon,  Mimic.  Corp. 

Miller  v.  Horton,  152  Mass.  540;  374. 

Hutton   v.    Camden,   39    N.   J.    L.  so  McGehee,  Due  Process,  374. 
122;    Underwood   v.   Green,   42   N. 


208  PUBLIC    HEALTH   ADMINISTRATION 

as  is  recognized  as  a  common  law  nuisance.  This  is 
particularly  true  of  the  quarantining,  or  imprisoning, 
of  persons  who  belong  to  the  class  now  known  as 
"  carriers, ' '  persons  who  though  themselves  in  good 
health  still  harbor  in  their  bodies,  and  develop  therein, 
the  bacteria,  or  protozoa  of  infectious  diseases,  and 
thus  become  a  danger  to  the  community.  Such  persons 
should  be  kept  under  surveillance,  but,  though  the 
restriction  of  liberty  of  such  persons  might  be  approved 
by  a  court,  as  a  proper  use  of  police  power,  still  such 
surveillance  should  be  provided  by  statute.  A  health 
officer  who  acts  without  such  statute  does  so  at  his 
own  risk,  and  in  case  the  court  might  not  uphold  his 
official  action,  the  officer  would  be  liable  legally  for 
damages.  In  the  absence  of  statutory  enactment,  rules, 
regulations,  and  orders  of  a  health  officer  have  only  the 
legal  value  of  requests  and  advice,  unless  supported 
by  court  action.  There  is  no  due  process  of  law  in  the 
order  of  an  officer  alone.  That  due  process  may  be 
furnished  by  statute,  or  by  court  action,  but  not  other- 
wise. 

The  supreme  court  of  South  Carolina  has  stated  this 
principle  very  clearly  in  Kirk  v.  Wyman,91  holding: 
"From  this  it  follows  that  boards  of  health  may  not 
deprive  any  person  of  his  property  or  his  liberty,  unless 
the  deprivation  is  made  to  appear,  by  due  inquiry,  to 
be  reasonably  necessary  to  the  public  health;  and  such 
inquiry  must  include  notice  to  the  person  whose  prop- 
erty or  liberty  is  involved,  and  the  opportunity  to  be 
heard,  unless  the  emergency  appears  to  be  so  great 
that  such  notice  and  hearing  could  only  be  had  at  the 
peril  of  public  safety."    As  seen  above,  this  hearing 

si  65  S.  E.  B.,  387. 


"due  process  of  law"  209 

and  notice  may  be  had  in  the  legislative  body,  and  not 
necessarily  in  court.  The  case  at  bar  was  as  to  the 
right  of  a  board  of  health  to  remove  a  case  of  anaes- 
thetic leprosy  to  a  pest  house,  and  the  court  held  that 
the  board  had  exceeded  its  authority  in  making  such 
removal.  There  was  no  statute  of  South  Carolina 
which  required  such  action,  nor  which  specifically  gave 
to  the  board  discretionary  authority  therefor. 

It  may  not  be  left  to  the  discretion  of  a  city  engineer 
to  determine  where  sewers  are  to  be  constructed.  That 
is  legislation.92  On  the  other  hand,  a  statute  of  New 
Jersey  providing  for  the  drainage  of  any  low  or  marshy 
land  within  the  state,  upon  the  application  of  five 
owners  of  separate  lots  in  the  tract,  and  providing  for 
an  assessment  of  the  expenses  upon  all  the  owners,  was 
held  not  to  be  a  violation  of  the  Fourteenth  Amend- 
ment.93 So  too,  "An  ordinance  passed  by  the  city  of 
New  Orleans,  under  authority  conferred  by  the  legisla- 
ture of  Louisiana,  prohibiting  the  keeping  of  any  pri- 
vate market  within  six  squares  of  any  public  market 
of  the  city,  under  penalty  of  being  sentenced,  upon 
conviction  before  a  magistrate,  to  pay  a  fine  of  twenty- 
five  dollars,  and  to  be  imprisoned  for  not  more  than 
thirty  days  if  the  fine  is  not  paid,  does  not  violate  the 
Fourteenth  Amendment." 94 

"The  rule  of  construction  applicable  to  the  char- 
ters of  municipal  corporations  is  equally  applicable 
to  the  charter  of  the  state  board  of  health.  As  to 
municipal  corporations,  it  is  well  understood  that  they 

92  St.  Louis  v.   Clemens,  43   Mo.  9*  Miller,    on     the    Constitution, 

395;  Jaekson  Co.  v.  Brush,  77  111.  673;  Natal  v.  Louisiana,  139  U.  S. 
59.  621. 

oaWurts  v.  Hoagland,  114  U.  S. 
606. 


210  PUBLIC    HEALTH    ADMINISTRATION 

may  exercise  not  only  the  powers  expressly  granted, 
but  those  necessarily  or  fairly  implied  in  or  incident 
to  the  powers  expressly  granted,  and  also  those  which 
are  essential  to  the  declared  objects  and  purposes  of 
the  corporation. " 95  A  statute  which  gives  a  board  of 
health  "all  the  powers  necessary  and  proper  for  the 
preservation  of  the  public  health  and  the  prevention 
of  the  spreading  of  malignant  diseases, ' '  and  makes  it 
the  duty  of  such  board  ' '  to  examine  into  all  nuisances, 
sources  of  filth  injurious  to  the  public  health,  and 
causes  to  be  removed  all  filth  found  within  the  town 
which  in  their  judgment  shall  endanger  the  health  of 
the  inhabitants,"  gives  express  power  to  decide  what 
is  filth;  and  if  a  board  merely  errs  in  judgment  there 
can  be  no  redress  given  a  party  who  complains  of  its 
acts.96  A  board  of  health  may  regulate  as  well  as 
prohibit  the  exercise  of  offensive  trades.97  "An  order 
of  the  board  under  this  section  is  not  in  the  nature  of 
an  adjudication  of  a  particular  case,  but  of  a  general 
regulation  of  the  trade  or  employment  mentioned 
therein.  It  is  not  to  be  construed  with  technical  strict- 
ness, but  with  the  same  liberality  as  all  votes  and  pro- 
ceedings of  municipal  bodies  or  officers  who  are  not 
presumed  to  be  versed  in  the  forms  of  law ;  and  every 
reasonable  presumption  is  made  in  its  favor.  It  need 
not  state  in  direct  terms  that  the  trade  which  it  pro- 
hibits is  a  nuisance.  It  is  sufficient  if  the  order  clearly 
shows  that,  in  the  opinion  of  the  board,  the  exercise  of 
such  trade  will  be  hurtful  to  the  inhabitants,  or  injur- 
ious to  the  public  health,  or  attended  by  noisome  and 

95  State  Board  of  Health,  Louisi-  se  Raymond  v.  Fish,  51  Conn.  80. 

ana  v.  Standard  Oil  Co.,   107  La.  « Sawyer    v.     State    Board    of 

713.  Health,  125  Mass.  195. 


"due  process  of  law"  211 

injurious  odors. ' ' 9S  Sections  2143-2146  of  the 
revised  laws  of  Minnesota  providing  for  abatement  by 
the  state  board  of  health  of  premises  and  occupations 
menacing  to  public  health  are  an  exercise  of  the  police 
power  of  the  state,  a  sovereign  power,  for  the 
protection  of  the  public  health,  comfort,  and  safety. 
They  are  clearly  constitutional,  unless  in  so  far 
as  used  in  an  arbitrary  manner,  or  unnecessarily 
oppressively."  The  legislature  may  enact  laws 
upon  public  health  without  granting  hearings  to 
parties  affected;  and  it  may  delegate  this  power 
to  boards  of  health.100  "In  order  to  secure  and  pro- 
mote the  public  health,  the  state  creates  boards  of 
health  as  an  instrumentality  or  agency  for  that  pur- 
pose, and  invests  them  with  the  power  to  adopt  ordi- 
nances, by-laws,  rules,  and  regulations  necessary  to 
secure  the  objects  of  their  organization.  While  it  is 
true  that  the  character  or  nature  of  such  boards  is 
administrative  only,  still  the  powers  conferred  upon 
them  by  the  legislature,  in  view  of  the  great  public 
interests  confided  to  them,  have  always  received  from 
the  courts  a  liberal  construction,  and  the  right  of  the 
legislature  to  confer  upon  them  the  power  to  make 
reasonable  rules,  by-laws,  and  regulations  is  generally 
recognized  by  authorities."  1    (§§  206  et  seq.) 

Since  the  powers  of  a  board  of  health,  or  of  a  health 
officer,  are  not  to  be  exercised  in  an  arbitrary  manner, 
it  follows  that  the  authority  to  abate  nuisances  does 

as  Taunton  v.  Taylor,  116  Mass.  i  Blue  v.   Beach,   155  Ind.   121. 

254.  See  also  Isenhour  v.  State,  157  Ind. 

99  McMillan  v.   Minnesota  State      517. 
Bd.  of  Hth.,  110  Minn.  145. 

i°o  Health    Department    v.    Eec- 
tor,  145  N.  Y.  32. 


212  PUBLIC   HEALTH   ADMINISTRATION 

not  give  the  right  to  order  the  abatement  in  any  par- 
ticular manner.2  Thus,  in  the  absence  of  special  statu- 
tory authority  neither  the  board  of  health  nor  the  city 
council  of  a  city  have  any  power  to  erect  a  dam  for  the 
purpose  of  abating  a  nuisance  on  adjacent  land,  with- 
out the  consent  of  the  owner  of  the  property  on  which 
the  dam  is  erected.3  According  to  the  general  rules 
of  interpretation  a  board  of  health  cannot  delegate  its 
powers,4  but  it  has  been  held  that  in  abating  a  nuisance 
a  board  may  act  through  a  committee.5  A  board  of 
health  has  no  authority  to  enter  upon  private  property 
for  the  purpose  of  digging  a  cesspool  thereon  as  a 
receptacle  for  drainage  from  the  property  which  col- 
lects in  pools  on  the  streets  and  becomes  stagnant. 
There  are  other  adequate  remedies  to  abate  a  nuisance 
of  this  kind.6  The  board  may  remove  the  nuisance 
from  the  street,  or  it  may  bring  civil  action  against  the 
owner.  The  first  may  be  an  immediate  and  temporary 
remedy.  The  second  may  take  more  time,  be  more 
equible  and  efficient. 

By  a  legislative  act  in  Montana  the  state  directed 
that  no  polluting  sewage,  and  no  human  excrement 
shall  be  discharged  into  any  stream  which  is  the  source 
of  water  supply  for  a  city  or  town  until  such  deleteri- 
ous matter  is  rendered  harmless  by  some  means  of 
purification  acceptable  to  the  state  board  of  health. 
That  board  is  also  authorized  to  make,  or  cause  to  be 

2  Belmont  v.  New  England  Brick  *  Commonwealth    v.    Staples,    77 

Co.,  190  Mass.  442 ;  Salem  v.  East-  N.  E.  712. 

ern  E.  E.  Co.,  98  Mass.  431;  Wa-  s  Grace    v.     Newton    Board    of 

tuppa  Beservoir  v.  McKenzie,  132  Health,  135  Mass.  490. 

Mass.  71.  e  Smith  v.  Baker,  14  Pa.  C.  C.  65. 

s  Cavanaugh     v.      Boston,      139 
Mass.  426. 


"due  process  of  law"  213 

made,  a  thorough  investigation  in  a  case  of  this  char- 
acter; and,  if  in  the  judgment  of  the  board  the  public 
health  so  requires,  the  board  may  make  an  order  pro- 
hibiting any  city  from  extending  a  sewer  into  a  river, 
and  directing  that  the  city  at  as  early  a  date  as  prac- 
ticable dispose  of  its  sewage  in  some  sanitary  manner 
acceptable  to  the  board.  This  act  does  not  contemplate 
a  public  trial,  but  rather  an  ex  parte  investigation;  and 
the  legislature,  being  the  repository  of  the  police  power 
of  the  state,  could  designate  the  state  board  of  health  as 
its  agent  and  prescribe  the  manner  in  which  such  police 
power  should  be  exercised.  If  the  board  informs  itself 
by  any  means,  the  fact  that  testimony  is  not  taken  is 
altogether  immaterial.7 

The  Missouri  State  Board  of  Health  is  not  a  court — 
is  not  a  judicial  tribunal.  It  can  issue  no  writ.  It  can 
try  no  case — render  no  judgment.  It  is  merely  a  gov- 
ernmental agency,  exercising  ministerial  functions.  It 
may  investigate  and  satisfy  itself  from  such  sources  of 
information  as  may  be  attainable.  To  guard  and  pro- 
tect the  health  and  welfare  of  its  people  the  state 
must  have  its  ministerial  agents  or  officers  and  entrust 
them  with  power.  If  every  administrative  act  that 
looks  to  the  enforcement  of  the  law  should  be  required 
to  be  reduced  to  the  compass  of  a  lawsuit  and  be  put 
in  effect  only  after  a  court  had  at  the  end  of  a  formal 
trial  stamped  its  judgment  on  it,  the  government  would 
make  slow  progress.  There  must  be  trust  reposed 
somewhere  and  the  power  to  execute  the  law.  The  gen- 
eral assembly  has  taken  great  care  to  secure  trust- 
worthy men  to  perform  the  duties  that  are  devolved 

7  Miles    City   v.    Montana    State 
Board  of  Health.  102  Pac.  696. 


214  PUBLIC  HEALTH  ADMINISTRATION 

on  the  state  board  of  health.  The  duties  of  the  board 
are  of  an  administrative  or  ministerial  character,  and, 
therefore,  as  long  as  its  acts  are  within  the  scope  of 
the  exercise  of  a  reasonable  discretion,  it  is  free  to 
act.  If  perchance,  through  a  misunderstanding  of  the 
law,  the  board  should  refuse  to  perform  a  given  duty, 
the  writ  of  mandamus  would  right  the  wrong,  but  the 
writ  of  prohibition  does  not  go  against  such  a  body. 
It  goes  only  against  a  court,  or  tribunal  exercising 
judicial  functions.8 

§  194.  Summary  action  may  be  legal.  The  action  of 
a  health  official  may  necessarily  be  summary,  but  if 
performed  within  the  powers  granted  by  the  statute 
it  need  not  violate  the  Fourteenth  Amendment.  "By 
summary  is  not  meant  arbitrary,  or  illegal,  or  unequal. 
It  must  under  our  Constitution  be  lawfully  done.  But 
that  does  not  mean,  nor  does  the  phrase  'due  process 
of  law'  mean,  by  a  judicial  proceeding.  The  nation 
from  whom  we  inherit  the  phrase  'due  process  of  law' 
has  never  relied  upon  the  courts  of  justice  for  the 
collection  of  her  taxes.  We  need  not  here  go  into  the 
literature  of  that  constitutional  provision,  because  in 
any  view  that  can  be  taken  of  it,  the  statute  here  does 
not  violate  it,  as  it  gives  an  opportunity  to  be 
heard. ' ' 9 

Thus  a  city  board  of  health  may  remove  a  building 
or  part  thereof,  dangerous  to  the  lives  of  pedestrians 
passing  along  the  adjacent  sidewalk,  but  the  members 
must  be  prepared  to  show,  when  called  in  question,  that 
the  destroyed  building  was  in  fact  a  nuisance.10    It  was 

sMeAnally  v.  Goodier,  195  Mo.  io  Smith  v.   Irish,  55   N.  Y.   S. 

551.  837. 

9  McMillen  v.  Anderson,  95  U.  S. 
37. 


"due  process  op  law"  215 

held  in  another  case,1  x  also,  that  the  action  of  a  munic- 
ipal board  of  health  determining  a  nuisance  and 
ordering  its  abatement  within  a  certain  time,  required 
no  notice  to  the  party  interested,  as  he  has  his  remedy 
in  an  injunction,  or  on  the  personal  liability  of  the 
individual  members  of  the  board.  Also,  it  has  been 
held  that  the  jurisdiction  over  nuisances  given  by  the 
statute  in  Massachusetts  to  town  boards  of  health  is 
summary  in  nature,  and  orders  made  thereunder  are 
not  subject  to  judicial  examination  and  revision  before 
being  carried  out.  Afterwards,  the  question  of  whether 
there  was  in  fact  a  nuisance,  and  if  so  whether  it  was 
maintained  by  the  parties  charged,  may  be  litigated.12 
This  possible,  subsequent  litigation  complies  with  the 
requirements  as  to  due  process  of  law. 

§  195.  Legislative  action  must  be  reasonable.  Legis- 
lative action  must  be  reasonable,  and  clearly  designed 
to  secure  the  object  sought.  This  is  illustrated  by  two 
cases  relative  to  the  quarantine  of  cattle.  The  state 
of  Missouri  passed  a  statute  excluding  the  cattle  of 
certain  states  during  certain  portions  of  the  year. 
Though  it  was  designed  to  prevent  the  spread  of  the 
Texas  cattle  fever,  and  though  the  purity  of  the  inten- 
tions of  the  legislators  was  not  to  be  specially  doubted, 
it  did  not  appear  that  the  law  was  so  drafted  as  to 
make  any  distinction  between  infected,  and  non-in- 
fected animals.  The  court  held,  therefore,  that  though 
it  was  nominally  intended  as  a  health  measure,  really  it 
worked  as  a  regulation  of  interstate  commerce,  and  it 
was  therefore  unconstitutional,  being  outside  of  the 
powers  of  the  state.13    On  the  other  hand,  a  somewhat 

11  Hartman  v.  Wilmington,  41  "  R.  R.  Co.  v.  Husen,  5  Otto, 
At.  74,  1  Marv.  215.                                 465. 

12  Stone  v.  Heath,  179  Mass.  385. 


216  PUBLIC   HEALTH   ADMINISTRATION 

similar  statute  in  Texas,  which  appeared  clearly  to  be 
a  quarantine  measure,  was  upheld  on  the  ground  of  so 
being,  even  though  it  did  interfere  with  commerce.14 
The  court  there  held:  "Quarantine  law,  as  construed 
and  applied  in  this  case,  is  not  in  conflict  with  the  Con- 
stitution of  the  United  States.  The  prevention  of 
disease  is  the  essence  of  a  quarantine  law.  Such  law 
is  directed  not  only  to  the  actually  diseased,  but  to 
what  has  become  exposed  to  disease. ' '  A  statute  mak- 
ing colorblindness  a  disqualification  for  service  on  rail- 
roads, and  requiring  the  railroad  companies  to  pay  for 
the  examination  of  its  men,  is  reasonable,  and  does  not 
take  property  without  due  process.15 

The  state  of  Minnesota  passed  a  statute  requiring 
certain  inspection  of  cattle  before  slaughtering.  This 
requirement  of  inspection  would  prevent  the  importa- 
tion of  dressed  meats,  no  matter  how  perfect.  The 
Supreme  Court  held  that  it  was  not  a  proper  use  of 
the  powers  of  the  state  for  the  preservation  of  health. 
"In  whatever  language  a  statute  may  be  framed,  its 
purpose  must  be  determined  by  its  natural  and  reason- 
able effects,  and  the  presumption  that  it  was  enacted  in 
good  faith  for  the  purpose  expressed  in  the  title 
cannot  control  the  determination  of  the  question 
whether  it  is,  or  is  not,  repugnant  to  the  Constitution 
of  the  United  States."16 

If  the  legislation  is  unreasonable  it  is  arbitrary. 
Boards  of  health  have  no  power  to  enlarge  the  common 
law  nuisances,  but  the  legislature  may  itself  declare 
certain  things  to  be  nuisances.17     Still,  the  statutory 

I*  Smith  v.  St.  Louis  and  South-  "Minnesota  v.   Barber,   136  U. 

western  Ey.  Co.,  181  U.  S.  248.  S.  313. 

is  Nashville  R.  Co.  v.  State,  128  n  Frank  J.   Goodnow,  Columbia 

U.  S.,  96.  Law  Review,  Vol.  2,  p.  205. 


"due  process  op  law"  217 

affirmation  must  be  supported  by  facts.  Calling  a 
thing  a  nuisance  does  not  make  it  so.18  "A  just  cause 
of  legislation  is  the  legitimate  function  of  government. 
A  statute  not  supported  by  such  cause  is  not  due 
process."  19 

In  all  cases  in  which  the  element  of  time  is  not  press- 
ing it  would  seem  that  some  form  of  judicial  proceed- 
ing were  advisable.  This  form  may  be  entirely  within 
the  administrative  office.  The  notice  may  be  one  to 
abate,  or  show  cause.  If  then  there  be  a  failure  to  get 
satisfaction  the  case  may  be  taken  into  the  court  for 
judicial  determination.  Summary  action  is  seldom 
advisable. 

Ordinances  passed  by  a  municipality  serve  as 
notices,  and  they  also  afford  opportunity  for  objection, 
before  the  specific  case  arises.  The  same  is  true  of 
legislative  enactment.  All  such  enactments,  whether 
state,  or  municipal,  whether  executive  regulation  or 
special  order,  must  be  reasonable,  and  free  from 
arbitrariness.  The  administration  must  be  impartial, 
and  free  from  all  bias.  ' '  Due  process  of  law  within  the 
meaning  of  the  amendment  is  secured  if  the  laws 
operate  upon  all  alike,  and  do  not  subject  the  indi- 
vidual to  an  arbitrary  exercise  of  the  powers  of  gov- 
ernment. ' ' 20 

§  196.  Jurisdiction.  The  question  of  jurisdiction 
may  arise  in  considering  due  process.     Due  process 

is  See  Desplaines  v.  Poyer,   123  657,  662.     Also,  Dent  v.  West  Va., 

111.    Ill;    Ex    parte    O'Leary,    65  129  U.  S.  114;  Duncan  v.  Missouri, 

Miss.   80;    State  v.  Mott,   61   Md.  152  U.  S.  377;   Yick  Wo  v.  Hop- 

287;  Yates  v.  Milwaukee,  10  Wal.  kins,  118  U.   S.  356;   Orr  v.  Gill- 

497.  man,    183    U.    S.    278;    Millett    t. 

isFreund,  Police  Power,  Sec.  20.  People,  117  111.  294;  Sears  v.  Cot- 

20  Giozza  v.  Turman,   148  U.  S.  trell,  5  Mich.  251. 


218  PUBLIC   HEALTH   ADMINISTRATION 

may  not  require  any  court  proceeding,  but  a  quasi- 
judicial  hearing  may  be  had  before  an  executive  officer. 
The  tendency  is  in  legislation  to  leave  more  of  these 
matters  of  administration  to  executive  departments. 
Thus  it  is  left  to  the  administrative  officers  to  deter- 
mine whether  or  not  an  immigrant  may  be  admitted  to 
the  country.21  While  the  legislature,  or  the  common 
law,  may  place  a  quasi-judicial  duty  upon  an  executive 
officer,  legislative  power  cannot  be  delegated.  Execu- 
tive orders  which  are  essentially  legislation,  or  munici- 
pal ordinances  which  exceed  the  powers  distinctly 
granted  by  the  statute,  violate  due  process,  in  that  the 
officers  so  acting  have  no  jurisdiction. 

§  197.  Executive  hearings.  The  spreading  of 
assessments  for  local  improvements  is  essentially  a 
clerical  labor  to  a  very  large  degree.  It  is  customary 
to  have  such  assessments  spread  by  administrative 
officers.  In  Illinois  it  is  the  rule  that  after  the  assess- 
ments are  spread  they  must  be  confirmed  by  the  court. 
Such  a  rule,  however,  is  not  universal.  In  a  case  of 
this  character  the  Supreme  Court  said:22  "Many 
requirements  essential  in  strictly  judicial  proceedings 
may  be  dispensed  with  in  proceedings  of  this  nature. 
But  even  here  a  hearing  in  its  very  essence  demands 
that  he  who  is  entitled  to  it  shall  have  the  right  to  sup- 
port his  allegations  by  argument,  however  brief,  and, 
if  need  be,  by  proof,  however  informal."  The  above 
dictum  is  quite  as  true  relative  to  those  problems  which 
arise  in  the  administering  of  the  governmental  efforts 
at  protecting  the  health  and  lives  of  the  citizens.    A 

21  TJ.  S.  v.  Ju  Toy,  198  U.  S.  253. 

22  Londoner  v.  Denver,  210  U.  S. 
373,  386. 


"due  process  of  law"  219 

hearing  before  the  executive  will  often  avoid  the  more 
expensive,  and  more  annoying  experiences  in  courts. 
Such  executive  hearings  have  the  very  great  advantage 
that  they  are  before  officers  trained  in  the  special  line 
of  work  to  be  considered.  When  within  the  law,  and 
with  full  regard  to  the  principles  of  due  process  of  law, 
such  hearings  are  therefore  more  likely  to  be  in  har- 
mony with  the  greatest  justice  to  all,  than  is  a  hear- 
ing before  a  court,  however  honest,  and  learned  in  law, 
but  unversed  in  the  sciences  pertaining  to  the  public 
health.  This  fact  was  plainly  stated  by  Judge  Hand, 
U.  S.  District  Court,  New  York,  in  a  patent  case  involv- 
ing the  chemistry  and  physiological  effect  of  certain 
drugs.23 

£3  Parke,  Davis  &  Co.  v.  Mulf  ord, 
189  Fed.  Eep.  95,  115. 


CHAPTER  VIII 


NUISANCE 


§  198.  Nuisance   harmful.  §  208.  Summary  abatement. 

§  199.  Nuisance  per  se  or  in  esse.  §  209.  Hearing  after  abatement. 

§  200.  Nuisance  in  posse.  §  210.  Destruction  not  always  per- 

§  201.  Nuisance  a  question  of  fact.  missible. 

§  202.  Common  law  nuisance,  stat-  §  211.  Urgency,  not  intrinsic  value, 

utory  nuisance.  must    govern. 

§  203.  Executive  determination.  §  212.  License    does    not    abrogate 
§  204.  Judicial  determination.  power. 

§  205.  Statutory    determination.  §  213.  Legislative        determination 
§  206.  Nuisances  prohibited,   abat-  best. 

ed,  or  regulated.  §  214.  Authority  for  abatement  is 
§  207.  Abatement.  not  for  construction. 

§  198.  Nuisance  harmful.  The  fundamental  idea  at 
the  base  of  most  governmental  action  having  for  its 
object  the  preservation  of  public  health  is  that  of  nui- 
sance. This  term,  in  its  etymological  signification, 
means  anything  which  annoys.  In  legal  wrongfulness, 
it  is  restricted  to  such  things  as  are  harmful,  or 
threaten  harm  to  others.  The  shouting  of  children 
may  be  annoying  and  irritating  to  individuals  in  the 
neighborhood.  In  common  parlance  this  shouting 
might  be  a  nuisance,  but  it  would  not  be  a  legal  nui- 
sance unless  it  tended  to  work  positive  harm  to  the  peo- 
ple, or  to  their  property.  It  is  evident  that  such  shout- 
ing might  work  injury  in  the  vicinity  of  a  hospital, 
where  silence  is  often  important.  For  the  same  reason 
such  noise  might  be  a  nuisance  in  a  private  neighbor- 

220 


NUISANCE  221 

hood  at  a  time  when  serious  illness  is  present.  So,  too, 
it  might  be  a  nuisance  during  school  hours  near  a 
school  building,  where  it  would  serve  to  distract  atten- 
tion. On  the  other  hand  the  shouting  of  children  at 
play  is  a  natural  and  healthful  way  in  which  they  ex- 
press their  joy.  It  is  a  healthful  and  innocent  diver- 
sion, and  serves  much  the  same  for  their  generated 
energy  as  does  the  safety  valve  for  an  engine. 

§  199.  Nuisance  per  se  or  in  esse.  Small-pox  is 
always  harmful.  It  has  no  good  features  to  counter- 
balance its  detrimental  influence.  Its  presence 
threatens  persons  with  sickness  and  death.  It  is  clearly 
a  nuisance  in  the  legal  signification.  The  same  may 
be  said  of  such  vermin  as  rats.  They  injure  buildings, 
eat  grain  and  other  produce,  serve  as  transmitters  of 
disease,  and  destroy  annually  many  thousands  of 
dollars  worth  of  property.  The  rat  is  essentially  a 
nuisance.  Such  a  nuisance  is  recognized  as  nuisance 
in  esse  or  per  se,  to  distinguish  it  from  the  nuisance  in 
posse,  a  thing  which  may  be  injurious  under  certain 
conditions,  but  which  in  other  conditions  may  be  bene- 
ficial and  useful. 

§  200.  Nuisance  in  posse.  It  is  the  nuisance  in  posse 
which  presents  the  most  difficult  problems  with  regard 
to  public  health  operations,  and  it  is  this  class  of  cases 
which  the  advances  of  science  may  very  materially  aid 
in  determining  when  they  are  nuisances  and  when  they 
are  not.  A  manure  pile  is  the  natural  result  from  the 
keeping  of  domestic  animals,  such  as  the  horse  or  cow, 
within  enclosed  places,  such  as  a  barn  or  small  yard. 
The  manure  has  often  a  definite  value  as  a  fertilizer. 
A  statute  declaring  all  manure  accumulations  nui- 
sances, even  were  it  possible  to  get  such  a  statute 


222  PUBLIC   HEALTH   ADMINISTRATION 

passed,  would  not  be  legal.  (§§171,  450.)  It  would 
involve  the  destruction  of  property  without  due  process 
of  law.  Formerly  the  harmful  influence  of  such  accu- 
mulations was  supposed  to  be  in  the  effluvia.  If  no 
odor  permeated  neighboring  buildings,  upon  that  basis 
there  would  be  no  nuisance.  In  the  light  of  recent 
investigations  it  may  be  questioned  whether  the  effluvia 
from  a  manure  pile  be  harmful.  Persons  who  are  much 
exposed  to  such  eminations  do  not  seem  to  be  harmed 
thereby.  It  is  true  that  the  odors  may  be  offensive 
to  sensitive  nostrils,  but  is  not  the  offence  really  due 
to  a  mental  state  of  the  person,  rather  than  to  anything 
essentially  injurious?  In  other  words,  is  not  such  a 
person  in  an  abnormal  state  which  could  be  easily 
rectified  by  mental  training?  Upon  the  basis  of  the 
effluvia  it  may  today  be  questioned  whether  it  would 
be  possible  to  regard  a  manure  pile  as  a  legal  nuisance 
therefore.  On  the  other  hand,  we  know  today  that  such 
piles  are  favorite  breeding  places  for  the  house  fly,  and 
for  rats.  These  members  of  the  animal  creation  are 
frequently  carriers  of  disease  germs.  They  travel  far. 
They  are  nuisances  in  esse,  and  the  things  which  tend 
to  produce  their  multiplication  are  in  consequence  nui- 
sances in  posse.  A  fly  will  travel  one  or  two  city  blocks 
within  a  short  time,  and  rats  may  range  through  a 
wide  territory.  Odors  and  effluvia  from  manure  are 
dissipated  within  a  short  distance.  Under  the  light 
of  modern  scientific  studies  then,  the  manure  pile  is  a 
nuisance  to  a  much  wider  extent  than  under  the  former 
theory.  But  even  so,  the  manure  pile  is  not  necessarily 
a  nuisance.  Since  it  takes  about  eight  days  for  the 
development  of  the  fly,  as  regards  its  character  as  a 
fly  breeding  material,  the  manure  is  not  a  nuisance  if 


NUISANCE  223 

the  pit  be  thoroughly  cleaned  once  a  week  in  the 
summer  time;  and  the  cleaning  in  the  winter  time  is 
not  necessary  for  this  reason.  In  the  winter  the  clean- 
ing is  necessary  to  take  from  the  rats  their  nesting 
place. 

Again:  upon  the  basis  of  the  effluvia  as  the  essen- 
tial nuisance,  it  was  necessary  only  to  prevent  large 
accumulations.  Such  collections,  especially  when 
moist,  generate  the  odor  largely  in  proportion  to  the 
amount  of  heat  generated.  If  effluvia  be  the  basis 
of  the  nuisance,  the  pit  might  be  called  clean  when  the 
bulk  is  removed,  and  a  littered  bottom  was  of  no 
special  signification.  Further,  the  pit  might  have  a 
natural  ground  bottom.  From  the  rat  and  fly  points 
of  view,  the  floor  of  the  pit  must  be  rat  proof,  and  it 
should  be  moisture  proof,  and  the  pit  must  be  abso- 
lutely cleaned,  which  means  sivept  out,  every  week 
during  the  fly  breeding  season.  No  manure  should  be 
permitted  to  lie  in  piles  upon  the  ground,  for  the  flies 
may  breed  in  the  earth  which  is  saturated  with  the 
drainage  from  the  pile.  From  the  point  of  view 
formerly  taken,  that  the  nuisance  consisted  in  the 
effluvia,  a  pile  under  a  shelter  was  less  objectionable 
than  in  a  pit,  for  the  reason  that  it  did  not  heat  so 
much. 

Manure,  then,  illustrates  the  fact  that  the  conditions 
under  which  a  thing  must  be  deemed  a  nuisance  vary 
greatly  with  our  scientific  advances  in  knowledge. 
Further:  a  nuisance  in  posse  is  so  because  it  favors 
the  production  of  something  which  is  a  nuisance  per  se. 

Disease  germs  are  nuisances  per  se.  A  person 
afflicted  with  small-pox  has  been  regarded  as  a  nui- 
sance, because  it  was  difficult  to  distinguish  between 


224  PUBLIC  HEALTH  ADMINISTRATION 

the  person  and  the  disease.  But  at  the  same  time 
clothing  and  other  material  which  had  been  in  contact 
with  a  small-pox  patient  were  regarded  as  nuisances. 
It  is  necessary  to  restrict  the  liberty  of  the  person 
afflicted  with  an  infectious  disease  in  order  to  con- 
trol the  disease  itself.  This  has  long  been  recognized. 
The  sickness  of  the  person  was  taken  as  the  evidence 
of  necessity  for  such  restriction.  Now  we  have  come 
to  realize  that  seemingly  healthy  persons  must  fre- 
quently be  restricted  as  to  liberty,  in  order  to  prevent 
the  infection  of  others  by  germs  which  seem  to  be 
unable  to  affect  the  primary  host.  It  is  today  recog- 
nized that  healthy  persons  may  be  disseminators  of 
diphtheria,  or  of  typhoid  fever,  and  these  typhoid  and 
diphtheria  carriers  have  become  serious  problems  for 
the  health  executives. 

§  201.  Nuisance  a  question  of  fact.  From  the  fore- 
going it  is  evident  that  the  question  of  nuisance  is  one 
of  fact,  not  fundamentally  one  of  law.  To  declare  a 
thing  a  nuisance  does  not  make  it  so.  This  is  true 
whether  the  declaration  be  made  by  an  executive 
officer,  or  by  the  legislature.  In  other  words,  the  action 
of  the  legislature,  or  of  the  executive  must  be  capable 
of  proof.1  Of  executive  determination  the  Supreme 
Court  has  said:2  "It  is  a  doctrine  not  to  be  tolerated 
in  this  country,  that  a  municipal  corporation  without 
any  general  laws,  either  of  the  city  or  of  the  state 
within  which  a  given  structure  can  be  shown  to  be  a 

i  Smith  v.  Irish,  55  N.  Y.  S.  837;  Cole  v.  Kegler,  64  Iowa,  69;   St. 

Stone   v.   Heath,    179   Mass.    385;  Paul   v.    Gilfillan,    36    Minn.    298; 

Hartman  v.  Wilmington,  41  A.  74,  Everett    v.    Marquette,    53    Mich. 

1  Marv.  285;  Ex  parte  Eobinson,  450;  State  v.  Mott,  61  Md.  297. 

30  Tex.  App.  493;  Tissot  v.  Great  2  Yates  v.  Milwaukee,  10  Wall. 

South  Tel.  Co.,  39  La.  Ann.  996;  497. 


NUISANCE  225 

nuisance,  can,  by  its  mere  declaration  that  it  is  one, 
subject  it  to  removal  by  any  person  supposed  to  be 
aggrieved,  or  even  by  the  city  itself.  This  would  place 
every  house,  every  business,  and  all  the  property  in  the 
city  at  the  uncontrolled  will  of  the  temporary  local 
authorities."  Although  a  city  charter  conferred  upon 
a  municipality  the  power  to  declare  what  shall  con- 
stitute a  nuisance,  the  supreme  court  of  Oregon  very 
properly  said : 3  "  An  ordinance  cannot  transform  into 
nuisance  an  act  or  thing  not  treated  as  such  by  the 
statutory  or  common  law."  Whether  made  by  an 
executive  or  a  legislative  body,  as  well  as  by  a  court, 
it  is  expected  that  the  decision  as  to  what  shall  be 
called  a  nuisance  will  be  the  outcome  of  a  form  of 
judicial  determination,  based  upon  facts,  and  not 
the  outcome  of  prejudice  and  emotion.  Therefore, 
although  a  city  ordinance  cannot  declare  that  to  be  a 
nuisance  which  is  not  in  fact  a  nuisance,  when  there  is 
an  honest  difference  of  opinion  the  city's  determina- 
tion is  held  conclusive.3*  A  resolution  by  a  board  of 
health  that  certain  property  is  a  nuisance,  is  not  judi- 
cial determination  of  the  question.4 

A  hospital  may  or  may  not  be  a  nuisance.  Thus,  in 
a  Kansas  case,  the  court  said  that  the  question  was 
not  whether  the  establishment  of  a  cancer  hospital 
would  place  the  occupants  or  adjacent  buildings  in 
actual  danger  of  infection,  but  whether  they  would 
have  reasonable  grounds  to  fear  such  a  result;  and 
whether,  in  view  of  the  general  dread  inspired  by  the 
disease,  the  reasonable  enjoyment  of  their  property 

a  Grossman  v.  Oakland,  37  L.  R.  ton  and  Quifacy  Tt.  R.  Co.,  259  111. 
A.  593.  391. 

3»Bushnell   v.   Chicago,   Burling-  4  Gaines  v.  Waters,  64  Ark.  609. 


226  PUBLIC   HEALTH   ADMINISTRATION 

would  not  be  materially  interfered  with.  It  would 
make  the  neighborhood  less  desirable  for  residence 
purposes.  The  court  concludes  that  on  these  considera- 
tions the  injunction  asked  for  was  rightfully  granted.5 
In  the  same  state  authorities  were  obliged  to  provide 
for  the  care  of  small-pox  patients.  It  was  impossible 
for  want  of  time  to  select  a  site  and  erect  a  suitable 
building.  No  houses  could  be  obtained  through  the 
city.  The  authorities,  therefore,  took  possession  of  the 
park  building.  An  injunction  was  sought  by  citizens, 
and  the  city  and  its  officers  were  prohibited  by  the 
injunction  from  performing  an  important  public  duty. 
The  court  of  appeal  said  that  public  officers,  who  are 
required  by  law  to  perform  duties,  involving  the  exer- 
cise of  judgment  and  discretion,  cannot  be  controlled 
by  injunction  while  in  good  faith  performing  such 
duties.6  (§  382.)  If  in  the  first  case  there  was  a  nui- 
sance, certainly  in  the  second  the  danger  to  surround- 
ing property  was  quite  as  great  for  the  time  being, 
but  the  officers  had  to  deal  with  an  emergency,  and 
there  could  not  be  any  degree  of  permanence  in  the 
injury  to  surrounding  property.  "Hospitals  and 
houses  for  the  sick  are  not  prima  facie,  or  per  se, 
nuisances,  but  they  might  under  some  circumstances 
become  such,  and  be  subject  to  injunction  for  main- 
taining a  nuisance,  where  the  evidence  is  clear  and  cer- 
tain. " 7  A  township  may  therefore  restrain  a  city  from 
erecting  a  pest  house  in  the  township,  but  outside  of 
the  city,  even  though  the  city  may  own  the  ground.8 
"A  building  used  as  a  hospital  for  the  treatment  of 

b  Stotler   v.    Rochelle,    109    Pae.  i  Barnard  v.   Sherley,   135  Ind. 

788.  547. 

«  Manhattan  v.  Hessin,  105  Pac.  s  Warner  v.  Stebbins,  111  Iowa, 

44.  86,  82  N.  W.  457. 


NUISANCE  227 

diseases  contagious  and  infectious  in  their  nature  is 
not  per  se  a  nuisance,  and  the  erection  and  use  of  such 
a  building  will  not  be  restrained  simply  because  there 
is  an  apprehension  that  it  may  result  in  being  a  nui- 
sance; but  the  court  must  be  satisfied  that  there  is  a 
well  grounded  apprehension. "  9  In  the  state  of  Texas 
the  court  found  that  a  pest  house  in  close  proximity 
(193  feet),  to  a  public  school  is  a  nuisance,  and  the 
authority  vested  in  the  county  authorities  to  provide 
pest  houses  does  not  authorize  them  to  maintain  a 
nuisance.10  Too  much  weight  must  not  be  placed  upon 
the  precedents  in  which  hospitals  and  pest  houses  have 
been  found  to  be  nuisances.  Many  of  these  are  based 
upon  the  manner  in  which  such  institutions  were  con- 
ducted before  the  nature  of  infections  was  known, 
and  when  the  word  ' '  small-pox ' '  was  a  conjurer  of  fear 
which  made  strong  men  turn  pale.  Formerly  all  hospi- 
tals were  viewed  with  dread.  Today  they  are  becoming 
generally  recognized  as  refuges  to  which  people  cheer- 
fully resort,  and  there  is  no  reason  why  a  properly  con- 
ducted hospital  for  infectious  disease  should  be  looked 
upon  with  apprehension.  Such  institutions  are  neces- 
sities, and  like  other  hospitals  they  should  be  located 
where  they  may  be  most  useful.  Such  a  hospital  should 
be  located  near  to  the  residence  centre,  other  things 
being  equal.  If  they  be  really  nuisances  it  must  be 
because  of  faulty  construction,  or  bad  management, 
and  not  because  they  are  used  for  the  isolation  and 
treatment  of  infectious  diseases. 

§202.  Common  law  nuisance — Statutory  nuisance. 
A  common  law  nuisance  is  one  which  long  custom  has 

9  State  ex  rel.  Board  of  Health,  io  Thompson    v.    Kimbrough,    57 

Hamilton  v.   Inhabitants  of   Tren-       S.  W.  328. 
ton,  63  Atl.  897. 


228  PUBLIC    HEALTH   ADMINISTRATION 

so  determined,  especially  by  court  procedure.  Small- 
pox is  such  a  nuisance.  A  statutory  nuisance  is  one 
which  is  so  denned  by  statutory  enactment.  Thus 
statutes  denning  degrees  of  purity  for  food  and  drugs 
represent  the  consensus  of  opinion  of  the  territory 
interested  in  the  legislation.  Food  and  drugs  which 
do  not  come  up  to  the  required  standards  are  included 
under  the  general  term  of  nuisance,  and  enactments 
based  upon  these  principles  are  legal  even  though  there 
be  no  positive  detrimental  or  harmful  element  therein. 
In  a  similar  manner  a  statute  denning  the  districts  in 
which  liquor  may  not  be  sold  makes  the  sale  within 
that  territory  a  nuisance,  and  actionable. 

1 1  It  seems  to  be  essential  to  the  common  law  idea  of 
a  nuisance  that  the  offensive  condition  be  due  either 
to  the  act  of  man,  or  to  the  failure  to  maintain  that 
which  has  been  erected  and  created  by  human  agency, 
in  a  safe  or  proper  condition.  At  common  law  there  is 
no  liability  for  a  natural  condition  not  in  any  way 
traceable  to  positive  human  action.  Thus,  malarial 
swamps,  or  lowlands,  swollen  streams,  weeds  or  insects, 
or  diseased  animals,  do  not  constitute  actionable  nui- 
sances."11 It  is  particularly  in  this  latter  class  of 
cases  that  statutory  enactment  is  necessary. 

It  must  be  remembered  that  the  legislative  power  of 
municipalities  is  very  limited.  The  state  legislature 
may  by  enactment  determine  things  to  be  nuisances 
which  the  individual  municipalities  would  be  impotent 
to  condemn.  In  Laugel  v.  Bushnell,  the  supreme  court 
of  Illinois  discussed 12   the  powers  of  municipalities 

11  Freund,  Police  Power,  616,  cit-  12  197  111.  20. 

ing,  Giles  v.  Walker,  24  Q.  B.  D. 
656. 


NUISANCE  229 

relative  to  nuisances,  and  differentiated  three  classes. 
1.  Nuisances  per  se,  and  so  recognized  by  common 
law  or  denounced  by  statute.  2.  Such  conditions  or 
things  as  are  not  essentially  harmful,  but  which  may 
become  nuisances  under  certain  conditions  or  surround- 
ings. 3.  Conditions  or  things  regarding  whose  essen- 
tially harmful  character  there  may  be  honest  differ- 
ence of  opinion.  In  the  absence  of  restrictive  legisla- 
tion by  the  state,  the  municipal  denunciation  by  ordi- 
nance would  be  conclusive  in  the  first  and  third  cases, 
but  the  power  over  the  second  class  is  limited  to  such 
as  are  shown  to  be  nuisance  in  fact.  The  court  said : 13 
"We  do  not  conceive  it  to  be  the  law  that  city  coun- 
cils or  boards  of  village  trustees  may  conclusively 
declare  that  to  be  a  nuisance  which  a  court,  acting 
upon  experience  and  knowledge  of  human  affairs, 
would  say  is  not  so  in  fact."  Thus  the  court  upheld 
an  ordinance  regulating  the  sale  of  certain  soft 
drinks,14  but  it  refused  to  uphold  an  ordinance  which 
denounced  public  dances,  and  the  renting  of  halls  for 
such  dances,  as  a  nuisance.15  The  court  would  sustain 
an  ordinance  regulating  such  dances,  and  restricting 
them  under  circumstances  where  they  could  be  shown 
to  be  nuisances  in  fact.  Such  a  distinction  seems  to 
be  reasonable,  but  sometimes  courts  view  regula- 
tions of  municipality  regarding  nuisances  with  great 
liberality. 

"Where  the  power  is  only  to  declare  and  abate  nui- 
sances, it  is  restricted  to  nuisances  in  fact;  where  a 
power  is  given  over  a  subject  matter  that  may  tend  to 
give  rise  to  nuisances,  the  charter  will  usually  express 

13  p.  25.  15  Des  Plaines  v.  Poyer,  123  HI. 

«  Laugel  v.  Bushnell,  197  111.  20.       348, 


230  PUBLIC   HEALTH   ADMINISTRATION 

whether  it  is  a  power  to  regulate  or  suppress.  In  the 
absence  of  such  expression  it  would  seem  that  the  city 
should  have  power  to  forestall  the  nuisance  by  keeping 
the  danger  altogether  away  from  its  territory,  pro- 
vided such  a  course  is  in  accordance  with  the  customary 
practice  of  municipalities;  and  provided  that  regula- 
tion is  not  equally  efficient,  for  then  prohibition  would 
be  oppressive  and  unreasonable."16 

At  common  law  smoke  has  not  been  recognized  as 
a  public  nuisance,  though  its  character  as  a  private 
nuisance  may  have  been  acknowledged.  Under  the 
old  conditions  the  harmful  effects  of  smoke  were  not 
likely  to  be  important  upon  the  community.  As  cities 
grew  in  size,  and  as  manufacturing  with  soft  coal  be- 
came more  comprehensive,  the  injury  resulting  became 
so  great  that  it  became  necessary  to  restrict  the  evil. 
This  has  been  done  by  statutory  enactment,  and  this 
determination  has  been  deemed  proper.  Also  when 
the  determination  has  been  made  by  ordinance,  or  by 
health  regulation,  under  general  powers  conferred  by 
the  statute,  this  has  been  regarded  by  the  court  as  of 
the  same  force  as  a  statute; 17  but,  a  penal  law  or 
ordinance  should  be  sufficiently  definite  for  those  af- 
fected by  it  to  know  their  duty  thereunder,  and  if  not 
it  cannot  be  sustained  on  the  assumption  that  officers 
will  exercise  a  wise  discretion  in  enforcing  it.18 

§  203.  Executive  determination.  The  determination 
of  the  existence  of  a  nuisance  may  be  made  by  an 
executive  officer.  (§  192.)  Such  a  determination  is 
individual  rather  than   general.     It  is  liable   to  be 

is  Freund,  Police  Power,  141.  18  People  v.   N.  Y.   Edison   Co., 

"People  v.   N.  Y.   Edison   Co.,       144  N.  Y.  Supp.  707. 
144  N.  Y.  Supp.  707. 


NUISANCE  231 

negatived  by  court  action.  If  the  nuisance  be  abated 
upon  such  determination,  the  officer  making  the  abate- 
ment may  be  liable  for  damages,  in  case  the  court  be 
not  satisfied  that  there  was  in  fact  a  nuisance.  Sum- 
mary action  of  this  nature  is  not  advisable,  therefore, 
except  in  real  emergency. 

§  204.  Judicial  determination.  The  determination 
may  be  made  in  court.  This  also  is  individual  action. 
Proceedings  thus  instituted  are  more  free  from  per- 
sonal liability  of  the  officer,  but  each  case  must  be  thus 
determined  by  itself.  The  influence  of  one  determina- 
tion upon  future  cases  is  practically  only  a  moral  one. 

§  205.  Statutory  determination.  The  determination 
of  character  as  nuisance  may  be  made  by  statute,  or- 
dinance, or  rules.  These  methods  are  general.  Whereas 
determination  by  executive,  or  by  court  action,  is  com- 
parable to  examples  in  arithmetic,  enactments  which 
declare  certain  things  or  conditions  to  be  nuisances 
are  comparable  to  algebraic  formulae.  These  also 
may  be  tested  by  court  action.  If  the  statute  or  ordi- 
nance be  upheld  by  the  court,  the  question  is  settled 
for  all  similar  cases.  All  that  remains  for  the  execu- 
tive to  do  is  to  decide  when  such  general  conditions 
may  be  present,  and  to  act  accordingly.  It  must  always 
be  remembered  that  ordinances  are  stronger  than  ex- 
ecutive rules  or  regulations,  and  that  state  enactments 
are  more  sure  than  municipal  by-laws. 

§206.  Nuisances  prohibited,  abated,  or  regulated. 
Nuisances  may  be  prohibited,  abated,  or  regulated.  It 
is  neither  good  law  nor  good  policy  to  inflict  a  penalty 
which  is  unnecessarily  severe.  Especially  in  the  pres- 
ence of  the  plague,  for  example,  a  building  infested 
with  rats  would  be  deemed  a  nuisance.    It  must  be 


232  PUBLIC   HEALTH  ADMINISTRATION 

remembered  that  tlie  real  nuisance  is  not  the  building 
itself  but  its  rats  and  fleas.  The  nuisance  would  be 
abated  with  the  destruction  of  those  pests.  Future 
recurrence  of  the  nuisance  would  be  prevented  by 
making  the  building  rat  proof.  The  destruction  of  the 
building  would  only  be  justifiable  when  the  expense  of 
the  rat  proofing  and  purification  would  be  prohibitive, 
compared  with  the  value  of  the  property;  or  when, 
after  due  notice,  the  owner  neglects  to  take  the  neces- 
sary steps.  The  summary  abatement  of  the  nuisance 
by  the  destruction  of  the  building  would  be  justifiable 
only  in  emergency.     (§193.) 

§  207.  Abatement.  Nuisances  per  se  should  be 
abated.  Because  of  the  very  close  association  between 
the  nuisance  and  things  which  are  not  nuisances,  abate- 
ment may  not  be  possible  at  once.  Thus:  a  person  in 
whose  system  the  bacteria  of  typhoid  fever  are  being 
generated  must  not  be  destroyed  in  our  efforts  to  exter- 
minate the  nuisance  of  the  disease.  He  is,  for  the  time 
being,  a  nuisance  in  esse,  for  he  harbors  intimately  the 
nuisance  per  se.  He  must  be  restrained.  Other  nui- 
sances are  prevented  by  regulations  and  prohibitions. 

As  in  the  determination  of  nuisance,  so  in  the  pre- 
vention, the  method  to  be  pursued  may  be  by  executive, 
or  judicial  decision,  or  the  question  may  be  more  gen- 
erally settled  by  legislative  action.  Legislative  action 
has  the  very  great  advantage  of  removing  the  personal 
element,  or  reducing  it  to  a  minimum.  It  removes  to 
a  large  extent  that  general  uncertainty  which  may 
ever  be  present  in  all  police  work.  Police  power  is 
essentially  one  of  compulsion,  and  of  repression.  When 
left  chiefly  to  the  executive  there  is  a  great  opportunity 
for  personal  favoritism  or  oppression  in  administra- 


NUISANCE  233 

tion.  This  is  a  fault.  On  the  other  hand,  a  conscientious 
administrator  may  act  with  greater  justice  than  would 
be  possible  under  set  regulations.  This  is  true  be- 
cause some  individual  citizens  may  be  trusted,  while 
others  will  take  advantage  of  the  liberty  granted,  and 
laws  must  be  drafted  especially  for  the  unruly.  For 
this  reason  it  is  often  advisable  that  a  statute  or  ordi- 
nance stipulate  the  minimum  and  maximum  require- 
ments, leaving  the  exact  determination  to  the  execu- 
tive, or  to  the  court. 

§  208.  Summary  abatement.  From  the  very  exigen- 
cies of  the  case,  summary  abatement  is  sometimes 
necessary.19  (§194.)  Previous  notice  to  the  owner  is 
not  then  requisite.20  As  in  the  presence  of  a  conflagra- 
tion it  may  be  needful,  in  order  to  check  the  flames,  to 
destroy  a  building,  and  the  case  does  not  permit  the 
use  of  time  to  determine  ownership  and  notification,  so 
there  may  be  cases  arising  in  public  health  service 
equally  urgent.21  In  many  cases  arising  in  the  health 
service,  to  wait  for  a  judicial  determination  of  a  nui- 
sance would  be  to  permit  the  nuisance  to  work  its  full 
harm  upon  the  community.  .  For  example,  a  pond  in 
the  midst  of  a  populous  city  breeding  mosquitoes  in 
the  heat  of  the  summer  might  very  likely  continue  its 
work  until  cold  weather,  if  the  abatement  of  the  nui- 
sance depended  upon  the  slow  operation  of  the  courts. 
In  Massachusetts  it  was  held  that  the  powers  conferred 
on  boards  of  health  were  intended  to  provide  a  sum- 
mary and  speedy  remedy  for  the  ordinary  case  of  local 
nuisance  occasioned  by  the  neglect  or  mismanagement 

is  McGehee,  Due  Process  of  Law,  Wend.  397;  Ferguson  v.  Selma,  43 

372.  Ala.  398;  Montgomery  v.  Hutchin- 

soFreund,  Police  Power,  521.  son,  13  Ala.  573. 
2i  Meeker   v.    VanRensselaer,    15 


234  PUBLIC    HEALTH   ADMINISTRATION 

of  an  individual  upon  his  own  land,  which  could  be 
removed  or  abated  by  him  personally.22  In  Wisconsin 
the  local  board  of  health  may  abate  nuisance  without 
notice.23  A  law  directing  destruction  of  a  privy  vault, 
pending  appeal,  is  constitutional.24  The  board  of 
health  of  the  city  of  New  York  may  order  a  tenement 
house  vacated  because  of  its  unsanitary  condition 
without  notice  to  the  owner.25 

§  209.  Hearing"  after  abatement.  Though  by  statute 
and  custom  health  officials  are  vested  with  quasi- judi- 
cial powers  in  the  determination  of  nuisances,  their 
decision  is  not  final.  If  the  owner  of  property 
destroyed  cannot  get  his  formal  trial  before  the  abate- 
ment,  he  is  entitled  to  a  hearing  after.  This  is  or- 
dinarily in  the  form  of  a  suit  for  damages.  The 
burden  of  proof  is  then  upon  the  authorities  ordering 
the  destruction,  and  they  must  justify  their  action.26 
The  authority  of  the  officers  is  to  decide  as  to  the 
existence  of  a  nuisance.  They  have  no  authority  to 
declare  that  to  be  a  nuisance  which  is  not  so  in  fact. 
Their  determination  must  be  capable  of  proof.  If  it 
shall  appear  to  the  court  that  there  was  no  nuisance 
in  fact,  or  that  the  decision  be  unnecessarily  severe  in 
effect,  it  will  be  held  that  the  act  was  not  warranted  in 
law.  The  officers  will  therefore  be  considered  as 
private  wrong  doers,  and  the  injured  party  will  be  held 
entitled  to  damages.27 

22  Cambridge  v.  Monroe,  126  323 ;  People  v.  Yonkers,  140  N.  Y. 
Mass.   496.  1;  Newark  R.  Co.  v.  Hunt,  50  N. 

23  Lowe  v.  Conroy,  120  Wis.  151.  J.  L.  308;   Hutton  v.  Camden,  39 

24  Harrington  v.  Providence,  20  X.  J.  L.  122;  Loeseh  v.  Koehler, 
E.  I.  223.  144  Ind.  278;  Pearson  v.  Zehr,  138 

25  Egan  v.  Health  Dept.  City  of  111.  48. 

N.  Y.,  45  N.  Y.  S.  325.  27  Miller    v.    Horton,    152    Mass. 

26  Savanah  v.   Mulligan.   95   Ga.       540;  Pearson  v.  Zehr,  138  111.  48. 


NUISANCE  235 

There  can  be  no  property  right  in  that  which  is  un- 
lawful, or  inherently  harmful.  Ownership  in  property 
presupposes  that  it  shall  be  so  used  as  not  to  work 
injury  to  others.  If  the  property  be  a  legal  nuisance, 
that  implies  that  the  owner  has  disregarded  the  condi- 
tions upon  which  it  was  held,  and  he  has  therefore  lost 
his  special  right  as  an  owner.  Morever,  it  is  customary 
to  hold  that  the  owner  of  the  property  shares  in  the 
general  benefits  accruing  to  the  community  in  the 
abatement  of  a  nuisance.28  For  these  reasons  an 
owner  is  not  entitled  to  damages  for  the  property 
necessarily  destroyed  for  nuisance  abatement.29 
Herein  is  the  distinction  between  the  powers  of 
Eminent  Domain  and  Police  Power.  Though  in  each 
instance  the  property  is  appropriated  for  the  use  of  the 
public,  under  police  power  it  is  considered  that  in 
reality  the  property  is  not  used  by  the  community, 
though  the  owner  be  deprived  of  its  use  to  prevent 
abuse.30 

§210.  Destruction  not  always  permissible.  Sum- 
mary abatement  by  destruction  would  entitle  the  owner 
to  compensation  in  case  the  nuisance  could  have  been 
removed  by  regulation.  A  building  may  not  be  de- 
stroyed to  abate  nuisance  if  discontinuing  its  use  will 
abate  the  same.31  The  summary  destruction  of  a 
building  is  not  allowable  for  unlawful  sale  of  liquor,32 
nor  because  it  was  used  as  a  house  of  ill  fame.33  Neither 

28  Ex  parte  Lacey,  108  Cal.  326 ;  so  Miller   v.    Horton,   152   Mass. 

State  v.  Campbell,  64  N.  H.  403;  540. 

Health    Dept.    v.    Trinity    Church,  si  Health  Dept.  City  of  N.  Y.  v. 

145  N.  Y.  32;   Thorp  v.  Kutland  Dassori,  159  N.  Y.  245. 

E.  Co.,  27  Vt.  140 ;  Dillon,  Munic.  32  Eap  v.  Lee,  71  111.  193. 

Corp,  4th  Ed.  141.  33  Ely  v.  Supervisors  of  Niagara 

29Freund,    Police    Power,    521;  Co.,    36    N.    Y.     297;     Welsh    v. 

McGehee,      Due      Process,      375;  Stowell,  2  Douglas,  332. 
Black's  Constitutional  Law,  578. 


236  PUBLIC   HEALTH  ADMINISTRATION 

may  a  canal  be  summarily  destroyed  because  it  is  not 
kept  in  a  clean  and  wholesome  condition.34  The  same 
reasoning  applies  to  livery  stables.35 

Speaking  abstractly,  liquor  is  not  a  nuisance  per  se. 
Even  where  its  sale  may  be  illegal  as  a  beverage,  it  may 
be  regarded  as  a  medicine,  or  as  an  article  of  export, 
and  therefore  not  subject  to  summary  destruction.36 
However  it  was  held  in  Connecticut  that  this  interpre- 
tation would  tend  to  nullify  the  statute.37  Such  sum- 
mary destruction  may  be  a  necessary  use  of  police 
power,  where  the  presence  of  the  liquor  can  serve  no 
lawful  purpose,  as  on  an  Indian  reservation.38  Dogs, 
being  qualified  property,  may  be  summarily  destroyed 
when  kept  contrary  to  law.39     (§  186.) 

It  is  quite  customary  according  to  the  statutes  of  the 
several  states,  and  foreign  countries,  that  when  cattle 
are  destroyed  for  infectious  diseases  the  owner  be  com- 
pensated, either  in  part  or  in  whole.  If  the  destruction 
be  necessary,  such  compensation  will  be  a  matter  of 
policy,  not  of  law.  In  a  large  proportion  of  the  cases, 
however,  the  killing  of  the  animal  is  a  matter  of  policy 
rather  than  of  necessity.  Take  for  example  a  tubercu- 
lous cow,  in  the  early  stages.  The  presence  of  that  cow 
in  a  herd  endangers  other  cattle,  but  the  sick  individual 
may  be  isolated.  Her  milk  may  be  pasteurized,  and 
thus  made  harmless.  She  may  have  special  value  for 
breeding  purposes.    It  is  not  necessary  that  the  cow  be 

34  Babeock  v.  Buffalo,  56  N.  Y.  39  Campau  v.  Langley,  39  Mich. 

268.  451;   Sentell  v.  New  Orleans,  166 

ss  Miller  v.  Burch,  32  Tex.  208.       U.  S.  698 ;  Blair  v.  Forehand,  100 
so  Brown  v.  Perkins,  12  Gray,  89.       Mass.  136. 

37  Oviatt  v.  Pond,  29  Conn.  479. 

38  U.    S.    Eev.    Stat.    2140    and 
2141. 


NUISANCE  237 

slaughtered,  but  it  may  be  advisable.  If  the  authori- 
ties therefore  order  her  destruction  the  owner  should 
be  entitled  to  some  compensation.  On  the  other  hand, 
dourine  is  an  infectious  disease  which  is  very  fatal  to 
horses  and  mules.  On  the  Panama  Canal  Zone  it  was 
found  that  the  disease  may  be  spread  through  the 
agency  of  flies ;  and  that  a  fly  may  infect  another  animal 
two  hours  after  feeding  upon  the  diseased  nose  of  an 
infected  animal.  It  is  seldom  true  that  an  infected 
animal  lives  more  than  nine  months.  Practically  the 
disease  is  incurable,  according  to  the  present  knowl- 
edge. In  equity  the  owner  of  such  an  animal  would 
only  be  entitled  to  compensation  for  the  loss  of  its 
services  for  a  very  short  time  at  the  most,  and  the 
urgency  of  the  case  would  justify  summary  destruc- 
tion, even  without  compensation. 

§  211.  Urgency,  not  intrinsic  value,  must  govern.  It 
is  the  urgency  of  the  case,  not  the  intrinsic  value  of  the 
property  which  justifies  summary  action.  It  is  true 
that  in  Lawton  v.  Steele,40  it  was  held  that  the  insig- 
nificant value  of  the  fishnets  destroyed  for  illegal  use, 
as  compared  with  the  expense  of  a  previous  condemna- 
tion proceeding  justified  the  act.  In  the  United  States 
Court,  however,  Chief  Justice  Fuller,  and  Justices  Field 
and  Brewer  called  attention,  in  their  dissenting 
opinion,  to  the  danger  of  this  doctrine,  and  the  New 
York  court  later  practically  reversed  its  stand  in  Colon 
v.  Lisk,41  when  they  held  an  act  authorizing  the  for- 
feiture of  a  vessel  destroying  oyster  beds  as  uncon- 
stitutional. 

§  212.  License  does  not  abrogate  power.  We  have 
stated  that  nuisance  is  a  question  of  fact,  not  of  state- 

40  119  N.  Y.  226;  152  U.  S.  133.  «  153  N.  Y.  188. 


238  PUBLIC    HEALTH   ADMINISTRATION 

merit  nor  of  legislation.  A  municipality,  or  a  legislature 
may  declare  a  thing  to  be  a  nuisance  as  the  consensus 
of  opinion.  In  the  proportion  that  a  thing  or  condition 
is  a  nuisance,  the  doctrine  Salus  populi  est  supremo,  lex 
demands  that  it  be  suppressed.  By  virtue  of  its  police 
power  for  the  regulation  of  things  or  conditions  which 
may  prove  to  be  nuisances  the  municipality  or  the  state 
may  issue  licenses.  Though  under  some  conditions 
licenses  may  be  interpreted  as  contracts,  it  is  one  of  the 
principles  of  law  that  the  state  cannot  by  any  act  of 
its  own  hamper  or  prevent  the  future  exercise  of  its 
police  power.  The  fact  of  the  issuance  of  a  license 
does  not  therefore  prevent  future  acts  nullifying  the 
license  on  account  of  nuisance,  even  when  the  license 
does  not  contain  a  provision  for  its  revocation.  ( §  428. ) 
Thus  in  the  liquor  business,  though  some  of  the 
earlier  decisions  held  the  license  to  be  a  contract,42 
and  therefore  irrevocable,  it  is  now  generally  agreed, 
following  the  opinion  of  the  supreme  court  of 
Massachusetts43  in  1856,  that  liquor  licenses  may  be 
revoked,  even  without  the  reservation  of  revocation 
being  expressed.44  The  license  grants  permission  to 
conduct  only  the  business  specified.  For  example,  the 
fact  that  a  man  holds  a  druggist  license  does  not  pre- 
vent the  further  requirement  of  a  liquor  license  when 
he  sells  liquor  otherwise  than  on  a  physician's  pre- 
scription.45 

42  Adams  v.  Hackett,  27  N.  H.  672;  Powell  v.  State,  69  Ala.  10 
289;  Him  v.  State,  1  Ohio,  15.  Carbondale  v.  Wade,  106  111.  654 

43  Calder  v.  Kurby,  5  Gray,  597.  People  v.  Flynn,  184  N.  Y.  579 

44  State  t.  Holmes,  38  N.  H.  Brown  v.  State,  82  Ga.  224;  Mel- 
225 ;  MeKinney  v.  Salem,  77  Ind.  ton  v.  Mayor,  114  Ga.  462 ;  Pleuler 
213;    Moore   v.    Indianapolis,    120  v.  State,  11  Neb.  547. 

Ind.  483 ;  Fell  v.  State,  42  Md.  71 ;  45  Gray  v.  Connecticut,  159  U.  S. 

Columbus    v.    Cutcomp,    61    Iowa,       77. 


NUISANCE  239 

A  license  to  sell  meat  implies  that  the  business  of 
slaughtering  be  conducted  by  someone  and  somewhere. 
The  license  to  sell  meat  does  not  include  the  business 
of  slaughtering.  The  license  covers  only  that  which  is 
specifically  mentioned,  and  the  license  of  a  market 
would  not  cover  and  permit  the  business  of  slaughter- 
ing upon  the  premises.  Even  the  issuance  of  a 
slaughtering  license  does  not  prevent  the  abatement  of 
the  business  if  it  proves  to  be  a  nuisance.  Thus,  a 
board  of  aldermen  in  Massachusetts  issued  a  license  for 
a  slaughterhouse,  and  the  prohibition  of  the  business 
by  the  board  of  health  was  sustained  by  the  supreme 
court  of  the  state.46  In  Louisiana  a  similar  power  in 
the  interest  of  health  was  upheld  as  to  slaughter- 
houses ; 47  and  with  regard  to  markets  legally  estab- 
lished.48 Similarly,  though  a  city  conveyed  land  for  a 
cemetery  that  fact  did  not  prevent  the  passage  of  an 
ordinance  making  the  interment  of  the  dead  within  the 
city  limits  unlawful,  on  account  of  nuisance.49  On  the 
other  hand,  and  this  brings  prominently  forward  the 
fact  that  the  existence  of  a  nuisance  is  a  question  of 
fact  rather  than  of  law,  a  trust  accepted  by  a  city  to 
hold  property  for  cemetery  purposes  cannot  be  nullified 
by  legislation  where  there  is  no  claim  of  sanitary  neces- 
sity therefor.50 

1 '  In  general,  a  right  which  is  derived  from  the  exer- 
cise of  legislative  authority  is  as  much  within  the 
power  of  that  body  afterwards  to  change,  modify,  or 

<e  Cambridge    v.    Trelegan,    181  49  Brick  Presbyterian  Church  v. 

Mass.  565.  Mayor,    5    Cow.    538;     Coates    v. 

*7  Villavaso    v.    Barthet,   39    La.  Mayor,  7  Cow.  585. 

Ann.  247.  so  Stockton   v.    City  of   Newark, 

48  New   Orleans   v.   Stafford,    27  42  N.  J.  Eq.  531. 
La.    Ann.    417;    New    Orleans    v. 
Faber,  105  La.  Ann.  208. 


240  PUBLIC   HEALTH   ADMINISTRATION 

abrogate,  as  it  was  in  the  first  instance  to  enact  it."  51 
However,  the  legislature  may  not  enact  subsequent 
legislation  abrogating  a  contract  lawfully  made  by  a 
prior  act. 

§  213.  Legislative  determination  best.  So  far  as  is 
possible  nuisances  should  be  determined  by  statutory 
enactment,  preferably  by  state  laws,  and  the  method 
of  treatment  should  be  likewise  thus  provided.  This 
not  only  relieves  officers  from  personal  liability,  and 
saves  time,  but  it  is  more  sure  and  definite.  It  often 
happens  that  a  thing  or  condition  is  of  doubtful  status. 
The  orders  of  the  executive  may  be  defied  and  the  case 
taken  into  court.  The  court  may  recognize  the  fact 
that  there  may  be  a  difference  in  opinion,  and  in  the 
absence  of  a  clear  case  of  nuisance  the  court  would 
probably,  very  properly,  find  in  favor  of  the  defendant. 
Otherwise  there  may  be  the  question  of  partiality.  The 
condition  may  have  been  permitted  to  continue  in  other 
cases,  and  though  a  nuisance  be  shown  in  that  indi- 
vidual case,  in  the  absence  of  statutory  enactment  the 
court  would  have  no  guaranty  that  other  cases  would 
be  likewise  thus  treated.  One  case  thus  decided,  even 
in  a  lower  court,  would  serve  as  a  precedent.  The  con- 
sensus of  opinion  as  expressed  in  the  statute  of  a  legis- 
lature would  remove  all  this  uncertainty.  Therefore 
we  find  that  there  should  "be  a  legislative  determina- 
tion in  great  detail  as  to  what  are  nuisances. ' ' 52  The 
absence  of  such  state  enactments,  the  leaving  such  de- 
terminations to  municipalities,  to  executives,  and  to 
courts,  and  the  consequent  confusion  and  uncertainty 

si  Black 's     Constitutional    Law,  52  Goodnow,    Municipal    Govern- 

733,    citing   People   v.    French,    10       ment,  p.  271. 
Abb.  N.  C.  (N.  Y.)  418. 


NUISANCE  241 

in  results,  constitute  one  of  the  greatest  sources  for  in- 
efficiency in  public  health  administration. 

§  214.  Authority  for  abatement  is  not  for  construc- 
tion. Unless  that  specific  power  be  distinctly  granted, 
authority  given  to  a  health  department  to  abate  a  nui- 
sance does  not  carry  with  it  the  right  to  direct  any 
particular  form  of  reconstruction.  Thus  a  section  in  a 
city  charter,  providing  that  the  commissioner  of  health 
has  power  to  declare  certain  things  to  be  nuisances,  and 
to  abate  the  same  at  the  expense  of  the  owner,  does  not 
authorize  him  to  require  a  new  erection  or  construction, 
better  in  accord  with  modern  sanitation,  against  the 
will  of  the  owner.53  The  two  operations  are  quite  dis- 
tinct. Neither  may  a  board  of  health  order  the  con- 
struction of  a  permanent  improvement  at  a  scale 
bringing  it  within  the  definition  of  public  works,  and 
assess  costs  upon  the  property.54  The  board  may 
advise  such  improvement,  but  the  authority  for  the 
construction  lies  with  another  department. 

53  Eekhardt  v.  Buffalo,  156  N.  Y.  54  Haag  v.  City  of  Mt.  Vernon, 

658.  58  N.  Y.  S.  585,  41  App.  Div.  366. 


CHAPTER  IX 


PUBLIC  HEALTH  POWEES  AND  LIMITATIONS,  NATIONAL, 
STATE,  AND  MUNICIPAL 


NATION 

§  215.  Police  power  resides  in  the 
states. 

§  216.  Vital  statistics. 

§  217  Treaty  making  power  re- 
sides in  nation. 

§  218.  Treaties  classified. 

§  219.  Legislative  power  originat- 
ing in  treaty  making  au- 
thority. 

§  220.  Subjects  of  treaty. 

§  221.  Legislation  dependent  upon 
treaty  making  power. 

§  222.  Qualifications  for  federal 
officers. 

§  223.  Qualifications  for  citizen- 
ship. 

§  224.  Vital  statistics  as  evidence. 

§225.  Census. 

§  226.  Authority  to  require  re- 
ports, not  authority  for 
prevention. 

§  227.  Vital  statistics  not  essen- 
tially  health   measures. 

§  228.  Specified  and  implied  pow- 
ers. 

§  229.  Powers  of  nation,  terri- 
tories. 

§  230.  Powers  of  the  nation  over 
public  places. 

§  231.  Powers  of  the  nation  among 
states. 

§  232.  Eegulation    of   commerce. 


§233. 
§234. 
§235. 
§236. 

§237. 
§238. 
§239. 

§240. 

§241. 
§242. 

§243. 
§244. 

§245. 

§246. 


§247. 


§248. 


§249. 


§250. 


Commerce  includes  what? 

Pure  food  and  drugs. 

Determination  by  executive. 

Interstate  commerce  in- 
cludes persons. 

White  slave  traffic. 

Meaning  of  interstate. 

What  is  an  original  pack- 
age. 

Federal  control  over  manu- 
facture. 

Authority  versus  policy. 

Federal  control  over  means 
of  transportation. 

Purity  of  interstate  waters. 

Enforcement   of  state  acts. 

STATE 

Sanitary  authority  of  the 
states. 

State  authority  in  health 
recognized  by  federal 
government. 

Conflict  between  state 
health  regulation  and  na- 
tional law. 

State  stoppage  of  naviga- 
tion. 

State  authority  in  matters 
of  health  is  exclusive. 

State  sanitary  authority 
may  override  federal  au- 
thority. 


242 


PUBLIC    HEALTH    POWERS   AND   LIMITATIONS  243 

§  251.  State  laws  not  conclusive  as  §  258.  Authority   may   be   general, 

to  authority.  specific,  or  implied. 

§  252.  Meat  inspection.  §  259.  Ordinance  must  not  contra- 

§  253.  Authority  of  state  must  be  vene  common  rights. 

evident  in  the  act.  §  260.  State  may  do  what  city  may 

city  not. 

§  254.  Eelation  of  municipality  to  §  261.  Ordinance  not  unreasonable 

state.  if  authorized  by  state. 

§  255.  City  corporation.  §  262.  Executive  authority  depends 

§  256.  Legislation.  upon  legislative. 
§  257.  Ordinances  must  not  exceed 

limits  of  statutes. 


Nation 

We  have  seen  that  the  protection  of  public  health  by 
governmental  action  is  in  virtue  of  that  inherent  power 
for  self  preservation  commonly  called  police.  We  have 
learned  that  this  is  a  constitutional  government,  with 
careful  checks  designed  to  prevent  abuse  of  authority 
by  public  officers,  and  to  protect  the  individual  citizen 
from  governmental  oppression.  There  are  similar  re- 
straints by  which  power  and  authority  are  allotted  be- 
tween the  nation,  state,  and  city,  imposing  special 
duties  and  limitations.  It  is  not  necessary  to  give 
even  an  outline  of  all  these  boundaries  of  power  and 
authority,  but  it  is  necessary  to  understand  such  limi- 
tations as  pertain  to  health  administration. 

§  215.  Police  power  resides  in  the  states.  We  find  in 
the  federal  Constitution  no  mention  of  police  power, 
but  in  the  Ninth  and  Tenth  Amendments,  adopted  prac- 
tically with  the  Constitution,  we  learn  that ' '  all  powers 
not  delegated  to  the  United  States  by  the  constitution, 
nor  prohibited  to  the  states,  are  reserved  to  the  states 
respectively,  or  to  the  people."  This  reservation  to 
the  states,  therefore,  includes  police  power,  and  since 
the  preservation  of  the  public  health  is  an  important 


244  PUBLIC   HEALTH   ADMINISTRATION 

portion  of  this  power,  it  follows  that  this  duty  and 
authority  rests  principally  with  the  individual  states. 
We  say  principally  because  incidentally  even  the  cen- 
tral government  has  certain  powers  and  duties  in  this 
regard.  For  the  present  omitting  consideration  of 
these  special  powers  and  obligations,  we  find  that  each 
state  is  and  must  be  independent  in  its  efforts  to  pre- 
serve the  lives  and  health  of  its  citizens.  It  may  pass 
such  laws,  and  adopt  such  measures,  as  its  people  may 
decide  for  this  purpose,  provided  that  they  do  not  con- 
flict with  the  fundamental  principles  of  our  system, 
such  as  ' '  due  process  of  law, ' '  for  example.  The  United 
States  is  a  republican  nation,  and  so  is  France;  but 
there  is  this  very  important  difference  in  the  health 
administration  of  the  two  countries :  in  France  we  find 
a  centralized  system,  so  that  ultimately  even  the  vil- 
lage health  official  is  subject  to  the  national  control; 
while  in  the  United  States  the  central  government  has 
no  authority  over  the  states.  This  lack  of  authority 
sometimes  complicates  and  seemingly  nullifies  the 
operations  of  the  constitutional  provisions.  Thus,  by 
Article  II,  Section  2,  Par.  2,  the  President  is  empowered 
to  make  treaties  with  foreign  countries,  by  and  with 
the  advice  and  consent  of  the  Senate ;  and  Article  I,  Sec- 
tion 10,  Par.  1,  expressly  prohibits  the  individual  states 
from  entering  into  any  treaty.  The  United  States  may 
make  a  treaty  with  Japan  providing  that  the  citizens 
of  one  country  may  own  real  estate  in  the  other;  but  the 
individual  states  may  prohibit  ownership  of  land  by 
Japanese.  Is  our  nation  impotent  to  enforce  the  terms 
of  the  treaty  within  its  borders! 

Article  XVI  of  the  convention  with  Italy,  proclaimed 
September  27,  1878,  says:    "In  case  of  the  death  of  a 


PUBLIC    HEALTH    POWERS   AND    LIMITATIONS  245 

citizen  of  the  United  States  in  Italy,  or  of  an  Italian 
citizen  in  the  United  States,  who  has  no  known  heir, 
or  testamentary  executor  designated  by  him,  the  com- 
petent local  authorities  shall  give  notice  of  the  fact  to 
the  Consuls,  or  Consular  Agents  of  the  nation  to  which 
the  deceased  belongs,  to  the  end  that  information  may 
be  at  once  transmitted  to  the  parties  interested." 
There  have  been  two  or  three  complaints  from  Italy 
that  the  United  States  has  not  complied  with  the  terms 
of  this  Article.1  The  neglect  in  this  case  is  perhaps 
due,  to  some  degree  at  least,  to  a  lack  of  appreciation 
of  the  relative  powers  of  state  and  nation,  and  to  the 
neglect  on  the  part  of  local  officers. 

§  216.  Vital  statistics.  Because  vital  statistics  are 
closely  associated  with  the  police  power  of  public 
health,  and  because  this  power  is  chiefly  reposed  in  the 
individual  states,  according  to  former  interpretations, 
laws  pertaining  to  the  registration  of  births  and  deaths 
have  been  passed  only  by  state  authority.  (Chap. 
XIII.)  Though  their  importance  is  very  generally 
admitted,  for  various  reasons  many  states  have  either 
failed  to  act  at  all,  or  they  have  enacted  statutes  which 
are  faulty  in  form,  or  statutes  which  have  been  ineffec- 
tively enforced.  Though,  (I  believe  that)  in  the 
specific  cases  to  which  attention  has  been  called  by 
Italy  of  failure  to  report  deaths,  the  failure  was  not 
dependant  upon  a  lack  of  official  registration  of  the 
death,  it  is  manifest  that  such  deaths  as  are  covered 
by  this  convention  might  very  easily  escape  notice  of 
American  governmental  officers  if  bodies  be  permitted 
to  be  buried  without  public  record  of  the  same.     In 

i  Correspondence  to  Department  April  24,  1907,  February  4,  1909, 
of  State  from  Italian  Ambassador,      and  October  25*,  1909. 


246  PUBLIC   HEALTH   ADMINISTRATION 

other  words,  no  American  official  could  be  reasonably 
charged  with  reporting  deaths  of  such  Italians  to 
Italian  consuls,  unless  by  a  strict  enforcement  of  the 
registration  of  such  deaths  the  officer  be  enabled  to 
learn  of  the  same.  To  a  degree,  therefore,  the  enforce- 
ment of  the  provisions  of  this  treaty  depend  upon  such 
state  statutes  as  are  generally  classed  as  public  health 
measures.  It  is  not  impossible  that  the  former  con- 
struction may  be  in  error,  and  that  the  collecting  of 
original  entries  of  births  and  deaths  may  be  properly 
within  the  province  of  the  national  government.  In  its 
present  form  this  treaty  invades  the  province  of  public 
health,  other  treaties  may  involve  the  operations  of 
public  health  agencies  in  other  ways.  It  is  therefore 
proper  to  consider  this  function  of  the  federal  govern- 
ment. 

§  217.  Treaty  making  power  resides  in  nation.  As 
we  have  said,  according  to  the  federal  Constitution,  the 
power  to  make  treaties  is  given  to  the  President,  with 
the  consent  of  the  senate.2  The  Constitution  further 
prohibits  the  individual  states  from  entering  into  any 
treaty,  alliance,  or  confederation.3  In  this  regard  we 
differ  from  some  other  nations.  Although  the  Bra- 
zilian Constitution  gives  to  the  national  government 
authority  to  make  treaties,  the  state  of  Sao  Panlo 
entered  into  certain  foreign  relationships  to  protect  its 
interest  in  the  coffee  trade.  In  Switzerland,  "Within 
the  domain  of  international  relations,  the  cantons 
retain  the  right  to  conclude  treaties  with  foreign 
powers  respecting  border  and  police  regulations  and 
the  administration  of  public  property." 4    In  the  Grer- 

2  Art.  II,  See.  2,  Par.  2.  4  Ogg,   Governments  of  Europe, 

s  Art.  I,  Sec.  10,  Par.  1.  p.   414. 


PUBLIC    HEALTH   POWERS   AND   LIMITATIONS  247 

man  Empire  also,  the  individual  states  may  make  trea- 
ties, though  such  treaties  become  operative  relative 
to  certain  specified  matters  only  after  they  have  been 
approved  by  the  federal  council.5  In  making  compari- 
sons with  administration  in  other  lands  it  must  be 
remembered  that  there  may  be  authority  of  legisla- 
tion, without  an  independent  executive  machine  suffi- 
cient to  give  full  force  to  the  laws  enacted.  In  the 
United  States  we  have  executive  officers,  and  also 
courts,  in  every  part  of  the  land,  and  with  authority 
limited  practically  to  national  business.  In  Switzer- 
land, on  the  other  hand,  the  executive  machinery  of 
the  federation  is  meagre ; 6  and  as  in  Germany,  the 
execution  of  national  laws  is  left  to  the  officers  of  the 
individual  states. 7 

Our  national  Constitution  provides  8  ' '  This  Consti- 
tution, and  the  laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof,  and  all  treaties  made, 
or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land; 
and  the  judges  in  every  state  shall  be  bound  thereby, 
anything  in  the  constitution  or  laws  of  any  state  to 
the  contrary  notwithstanding."  The  wording  of  this 
section  seems  to  be  sufficiently  clear.  No  state  enact- 
ment can  stand  against  the  expressed  terms  of  a  treaty, 
and  it  has  even  been  held  that  a  treaty  may  supersede 
a  prior  act  of  Congress.9  If,  therefore,  a  treaty  in- 
volves the  use  of  the  powers  of  health  protection  in 
any  form  or  degree,  that  power  then  resides  in  the 
national  government. 

s  Constitution,  IV,  Art.  11,  and  t  Ogg,  Op.  Git.,  p.  206. 

II,  Art.  4.  s  Article  VI,  Section  2. 

6  Ogg>  Op.  Cit.,  p.  415.  a  Foster  v.  Neilson,  2  Pet.  314. 


248  PUBLIC  HEALTH  ADMINISTRATION 

§218.  Treaties  classified.  Treaties  are  practically 
contracts,  and  like  ordinary  contracts  between  indi- 
viduals they  may  be  divided  into  two  classes — executed 
and  executory.  An  executed  treaty  is  one  in  which 
the  transaction  is  finished  by  that  document,  as  in  the 
transfer  of  sovereignty  over  a  district  from  one  nation 
to  another.  Such  a  treaty  "differs  in  nothing  from  a 
grant."  10  By  the  treaty  with  England  in  1794  certain 
property  rights  of  Americans  in  England,  and  of  Eng- 
lish in  America,  were  recognized.  In  both  countries  it 
was  held  that  the  war  of  1812  did  not  abrogate  those 
rights.11  It  was  found  under  the  old  federation  that 
the  different  states  regarded  treaties  as  only  general 
moral  restraints,  and  they  did  frequently  disregard 
treaty  provisions.  Congress  in  vain  sent  a  circular 
letter  (April  13,  1787),  to  the  states,  though  right  was 
with  Congress.12  Consequently,  when  the  Constitution 
was  drafted  this  authority  of  Treaties  was  stated  very 
emphatically,  ' '  anything  in  the  constitution  or  laws  of 
any  state  to  the  contrary  notwithstanding. ' ' 

Some  treaties,  being  in  the  nature  of  a  lasting  con- 
tract, are  complete  in  themselves,  and  provide  for 
their  own  execution.  They  do  not  require  legislative 
action  to  make  them  active.  Others  are  practically 
agreements  between  the  powers  to  do  certain  things. 
To  be  of  force  the  powers  must  pass  certain  enact- 
ments. Such  a  treaty  is  that  between  this  country  and 
Italy,  before  mentioned.  It  is  particularly  such  trea- 
ties as  are  liable  to  be  of  interest  to  workers  for  the 
preservation  of  the  public  health.    Article  XVI  of  the 

io  Fletcher    v.    Peck,    6    Cranch.  gating  the  Gospel  v.  New  Haven,  8 

136.  Wheat.  464. 

ii  Sutton  v.  Sutton,  1  Russell  &  i2  Opinion     of    Iredell,     J.,     in 

Mylne,  663,  and  Society  for  Propa-  Ware  v.  Hylton,  3  Dall.  270. 


PUBLIC    HEALTH   POWERS   AND   LIMITATIONS  249 

convention  of  1878  necessitates  certain  definite  action 
from  Congress,  and  Congress  has  been  negligent.  It 
has  failed  to  specify  who  shall  be  deemed  "competent 
local  officers " ;  it  has  not  assigned  the  duty  of  making 
these  reports  to  consular  agents;  it  has  provided  no 
penalty  for  failure  to  observe  these  requirements.  It 
has  provided  no  means  by  which  the  ' '  competent  local 
officers"  may  become  cognizant  of  the  deaths  of 
Italians.  This  last  item  practically  raises  the  question 
whether  the  national  government  has  the  power  to 
establish  a  registration  of  deaths. 

§  219.  Legislative  power  originating  in  treaty  mak- 
ing" authority.  The  power  to  do  a  certain  governmental 
act,  especially  if  that  power  be  exclusive,  presupposes 
a  full  authority  to  complete  the  transaction.  The  indi- 
vidual states  are  not  subject  to  any  compulsion  from 
the  national  government.  The  authority  to  compel 
certain  acts  from  the  states  would  presuppose  an 
authority  over  the  subject  matter  itself.  But  we  are 
not  left  to  these  general  reasonings.  The  Constitution 
is  explicit  in  the  settlement  of  the  question.  Article 
1,  Sec.  8,  Paragraph  18,  grants  to  Congress  power  and 
authority  "To  make  all  laws  which  shall  be  necessary 
and  proper  for  carrying  into  execution  the  foregoing 
powers,  and  all  other  powers  vested  by  this  Constitu- 
tion in  the  government  of  the  United  States  or  any 
department  or  officer  thereof.''  Many  treaties  cannot 
become  law  until  there  shall  have  been  legislation  to 
give  the  treaty  effect.13 

§  220.  Subjects  of  treaty.  Whereas,  in  some  coun- 
tries the  treaty  making  power  is  divided,  by  our  Con- 

13  In  re  Metzger,   1  Parker,  Cr. 
R.    (N.  Y.)    108. 


250  PUBLIC   HEALTH   ADMINISTRATION 

stitution  the  treaty  making  power  is  solely  in  the  hands 
of  national  officers.  The  Constitution  puts  no  limita- 
tion thereon.  This  does  not  mean  that  the  power  is 
absolutely  without  limit.  By  the  principles  of  inter- 
national law  a  treaty  which  binds  one  of  the  parties 
to  do  acts  which  are  unlawful  is  void;  such  as  con- 
tradicting a  prior  treaty  with  another  power,  or  to  do 
acts  of  injustice  as  to  put  down  liberty,  or  to  conquer 
and  appropriate  an  independent  country.14  A  treaty 
must  not  conflict  with  the  Constitution.  It  has  been 
claimed  by  some  that  the  President  and  Senate  may 
not  negotiate  a  treaty  upon  a  subject  over  which,  either 
expressly,  or  by  implication,  the  Constitution  gives 
jurisdiction  to  some  other  body.  First,  there  are 
treaties  which  require  action  by  Congress.  Because 
the  House  of  Representatives  is  a  portion  of  Congress, 
and  because  it  has  no  part  in  the  treaty  making  power, 
it  was  contended  that  a  treaty  might  not  be  made 
which  required  such  legislation;  but,  as  Mr.  Jeffer- 
son 15  says  of  the  thirty-one  articles  in  the  commercial 
treaty  with  France,  if  we  were  to  admit  of  such  limita- 
tion, it  would  be  found  that  not  more  than  small  por- 
tions of  two  or  three  articles  would  remain  as  subjects 
for  treaty.  Mr.  Washington,  when  President,  called 
attention  to  the  fact  that  the  treaty  making  power  did 
not  include  the  House  of  Representatives,  in  a  refusal 
to  send  certain  papers  to  Congress.  It  is  now  well 
recognized  that  questions  relative  to  commerce  are 
among  the  most  important  of  our  international  prob- 
lems which  must  be  met  by  treaty;  and  that  the  treaties 

nWoolsey,    International    Law,  is  Man.    of    Pari.    Prac.    (1843) 

105;    Taylor,   International   Public       111. 
Law,  361. 


PUBLIC    HEALTH    POWERS   AND    LIMITATIONS  251 

so  made  are  binding  upon  Congress  as  the  supreme  law 
of  the  land.  Congress  has  never  failed  to  appropriate 
money,  when  demanded  by  the  terms  of  a  treaty.  In 
such  cases,  therefore,  it  must  be  recognized  that  the 
apparent  limitation  of  the  Constitution  is  not  a  restric- 
tion upon  the  treaty  making  power. 

Again:  when  Mr.  Livingston  was  Secretary  of 
State,  he  called  attention  (to  Mr.  de  Sacken,  June  13, 
1831),  to  the  fact  that  the  right  of  regulating  succes- 
sions was  among  the  powers  reserved  to  the  states,  and 
therefore  not  within  treaty  making  power.  In  1874, 
Mr.  Fish,  Secretary  of  State,  wrote  to  Aristarchi  Bey 
(May  19)  "The  estates  of  decedents  are  administered 
upon  and  settled  in  the  United  States  under  the  law 
of  the  state  of  which  decedent  was  a  resident  at  the 
time  of  his  death,  and  on  this  account,  in  the  absence 
of  any  treaty  on  the  subject,  interference  in  the  dispo- 
sition of  such  measures  as  may  be  prescribed  by  the 
laws  of  the  particular  state  in  such  cases  is  not  within 
the  province  of  the  federal  authorities. ' '  Note  that  he 
says,  "in  the  absence  of  any  treaty."  "Treaty  stipu- 
lations may  restrict  or  abolish  the  disability  of  aliens 
as  to  property  in  the  several  states. ' ' lc  We  are  not 
dependent  upon  mere  opinions  of  executive  officers. 
Cases  have  been  repeatedly  before  the  courts.  Thus 
it  was  held  in  Chirac  v.  Chirac  17  that  by  the  convention 
with  France  in  1800  aliens  might  inherit  lands  without 
being  naturalized,  and  the  treaty  was  held  to  dis- 
pense with  limitations  in  a  state  statute  on  alien  in- 
heritance. "A  treaty  giving  the  subjects  of  a  foreign 
state  (Switzerland)  the  privilege  of  holding  real  estate 
in  the  United  States  is  the  supreme  law  of  the  land."  1S 

16  8  Op.  411,  dishing,   1857.  is  Wharton,    International    Law 

17  2  Wheat.   259.  Digest,   138,   citing   Hauenstein   v. 


252  PUBLIC   HEALTH   ADMINISTRATION 

It  is  a  duty  of  every  sovereign  state  to  protect  the 
lives  and  property  interests  of  its  citizens,  both  at 
home  and  abroad.  To  deny  the  power,  would  be  to 
deny  sovereignty.  The  individual  states  have  no  treaty 
making  power.  By  exclusion,  therefore,  as  a  govern- 
mental proposition,  we  must  conclude  that  even  though 
it  invade  the  ordinary  rights  of  the  states,  the  nation 
has  authority  to  make  a  treaty  which  may  be  deemed 
necessary  for  such  protection  of  the  lives  and  property 
of  American  citizens. 

§221.  Legislation  dependent  upon  treaty  making 
power.  Since  many  treaties  require  legislation,  and 
because  such  treaties  are  lawfully  within  the  power 
of  the  President  to  make,  it  naturally  follows  that 
the  nation  has  the  power  and  authority  to  pass  such 
legislation  as  may  be  required  to  make  the  treaty  effec- 
tive. If,  then,  it  can  be  shown  that  in  order  to  give 
full  effect  to  the  treaty  with  Italy,  as  above  mentioned, 
it  is  necessary  to  enact  a  law  requiring  the  reporting 
and  recording  of  every  death,  it  follows  that  the 
national  government  has  that  power.  Treaties  rela- 
tive to  alien  inheritance  may  require  the  recording  of 
births  also,  for  residents  of  the  United  States  have  lost 
foreign  inheritances  through  inability  to  comply  with 
the  requirement  of  certain  lands,  which  demand  that 
as  proof  of  heirship  a  copy  of  birth  record  must  be 
supplied. 

Concerning  this  legislative  power  of  the  nation 
which  depends  upon  the  treaty  making  power,  Pomeroy 
says : 19    "  There  is,  as  I  believe,  a  mine  of  power  which 

Lynham,  100  U.  S.  483;  affirming      Frederickson  v.  Louisiana,  23  How. 

Chirac   v.    Chirac,    2   Wheat.    259;       445. 

Carneal  v.  Banks,  10  Wheat.  181 ;  is  Constitutional  Law,  §  679. 


PUBLIC    HEALTH   POWERS   AND   LIMITATIONS  253 

has  been  almost  unworked,  a  mine  rich  in  beneficent 
and  most  efficacious  results.  The  President  may,  and 
must,  manage  the  foreign  relations;  he  may,  in  the 
manner  prescribed,  enter  into  treaties.  To  these  execu- 
tive attributes  must  be  added  the  legislative  authority 
to  pass  all  laws  which  may  be  necessary  and  proper  to 
aid  the  President  in  exercising  these  functions.  From 
this  combination  there  result  particular  powers  in  the 
national  government  commensurate  with  the  needs  of 
every  possible  related  occasion.  We  have  been  too 
much  accustomed  to  look  at  the  particular  grants  con- 
tained in  the  Constitution,  in  order  to  ascertain  what 
the  government  may  do.  But  here  is  a  most  ample 
and  comprehensive  grant.  The  government  not  only 
may,  but  must,  preserve  its  foreign  relations;  it  not 
only  may,  but  must,  use  all  such  means  as  shall  pre- 
vent just  causes  of  war  against  us  by  foreign  powers. 
Its  international  relations  are  unlimited  in  number 
and  extent;  they  affect  to  a  greater  or  less  degree  the 
internal  and  domestic  relations;  many  of  the  measures 
which  are  necessary  to  preserve  and  control  them,  must 
act  entirely  within  the  national  territory,  and  directly 
upon  private  persons  or  rights.  So  far  as  those 
external  relations  affect  the  internal,  and  so  far  as  the 
measures  appropriate  in  exercising  the  function  of 
controlling  the  external  relations  act  within  the 
interior,  and  upon  private  persons  and  rights,  just  so 
far  has  the  government  all  the  power  under  the  Con- 
stitution which  the  exigencies  of  any  occasion  may 
demand.  Where  the  act  is  legislative  in  its  nature, 
the  Congress  may  legislate;  where  the  act  is  executive 
in  its  nature,  the  President  may  execute."  And  again 
Pomeroy  says:20     "The  states  have  no  international 

20  Op.  cit.,  680. 


254  PUBLIC    HEALTH    ADMINISTRATION 

status;  but  they  may,  through  their  governments,  do 
such  acts  as  endanger  the  foreign  relations  of  the 
nation :  for  these  acts  the  government  is  responsible  to 
the  foreign  power,  and  cannot  evade  the  responsibility 
by  asserting  its  want  of  control  over  the  state.  As  the 
responsibility  rests  upon  it,  the  power  must  belong  to 
it.  *  *  *  I  repeat,  that  in  this  executive  attribute, 
and  in  the  capacity  of  Congress  to  pass  laws  in  aid 
thereof,  there  is  a  source  of  power  which  has,  as  yet, 
been  little  resorted  to,  which  has  even  been  little 
thought  of,  but  which  is  fruitful  in  most  important  and 
salutary  results."  The  treaty  making  power  seems 
therefore  to  cover  the  enactment  of  a  national  vital 
statistics  law,  and  perhaps  other  matters  pertaining  to 
public  health. 

§222.  Qualifications  for  federal  officers.  Article  I, 
Section  2,  Paragraph  2,  of  the  Constitution  provides 
that  "No  person  shall  be  a  representative  who  shall 
not  have  attained  to  the  age  of  twenty-five  years." 
Similarly  in  the  same  Article,  Section  3,  and  Paragraph 
3,  it  provides  "No  person  shall  be  a  senator  who  shall 
not  have  attained  the  age  of  thirty  years."  In  like 
manner  Article  II,  Section  I,  Paragraph  5,  in  speaking 
of  the  Presidency,  says :  ' '  Neither  shall  any  person  be 
eligible  to  that  office  who  shall  not  have  attained  to  the 
age  of  thirty-five  years,"  and  the  third  paragraph  of 
the  Twelfth  Amendment  stipulates  that  "No  person 
constitutionally  ineligible  to  the  office  of  President 
shall  be  eligible  to  that  of  Vice-President  of  the  United 
States."  It  would  seem  that  under  these  provisions 
Congress  would  have  authority  to  enact  a  statute 
requiring  the  filing  of  certificates  of  birth,  as  an  evi- 
dence of  age.    If  so,  it  would  seem  to  have  the  further 


PUBLIC    HEALTH    POWERS    AND    LIMITATIONS  255 

authority  to  provide  for  suitable  registrations  of  birth. 
Especially  in  cases  of  the  presidency  and  vice  presi- 
dency, such  provisions  as  to  birth  certificate  would  be 
particularly  warranted  because  in  Article  II,  Section  1, 
Paragraph  5,  it  is  demanded  that  the  President  must 
be  a  natural-born  citizen,  and  the  Twelfth  Amendment 
extends  this  requirement  to  the  vice  president. 

§  223.  Qualifications  for  citizenship.  The  first  clause 
of  the  second  section  of  Article  IV  of  the  Constitution 
reads:  "The  citizens  of  each  state  shall  be  entitled 
to  all  privileges  and  immunities  of  citizens  in  the  sev- 
eral states. ' '  Citizenship  is  defined  in  the  first  section 
of  the  Fourteenth  Amendment  as  follows:  "All  persons 
born  or  naturalized  in  the  United  States  and  subject  to 
the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  state  wherein  they  reside.  No  state 
shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United 
States";  and  the  last  paragraph  of  this  amendment 
gives  to  Congress  "power  to  enforce  by  appropriate 
legislation  the  provisions  of  this  article."  Do  not 
these  provisions  also  grant  to  Congress  the  authority 
to  enact  a  statute  requiring  the  registration  of  births 
in  order  that  citizenship  may  be  thus  more  definitely 
proven 1 

§  224.  Vital  statistics  as  evidence.  Although  regis- 
tration of  births  and  deaths  is  commonly  regarded  as 
a  portion  of  the  work  of  health  departments,  it  must 
be  recognized  that  by  far  the  most  important  use  of 
such  records  is  essentially  commercial.  They  are 
needed  in  proof  of  heirship;  in  proof  of  title  to  prop- 
erty; in  proof  of  age,  as  for  admission  to  school,  to 
work,  right  to  practice  medicine  or  other  professions, 


256  PUBLIC   HEALTH  ADMINISTRATION 

the  right  to  be  married,  etc. ;  in  criminal  trials ;  to  pre- 
vent fraud  in  life  insurance;  proof  of  legitimacy,  etc. 
Since  persons  living  in  one  state  may  inherit  property 
in  others,  and  since  the  transfer  of  property  is  essen- 
tially in  the  nature  of  a  commercial  transaction,  it 
would  seem  that  the  clause  in  the  Constitution  which 
gives  to  the  nation  control  over  interstate  and  foreign 
commerce  might  also  have  a  bearing  upon  the  power 
of  the  nation  to  enact  a  national  vital  statistics  law. 
Article  IV  of  the  Constitution  says:  "Full  faith 
and  credit  shall  be  given  in  each  state  to  the  public 
acts,  records,  and  judicial  proceedings  of  every  other 
state;  and  Congress  may,  by  general  laws,  prescribe 
the  manner  in  which  such  acts,  records,  and  proceed- 
ings, shall  be  proved,  and  the  effect  thereof."  This 
again  seems  to  give  to  the  federal  government 
authority  to  enact  a  vital  statistics  law. 

§  225.  Census.  Article  I,  Section  3,  of  the  Constitu- 
tion provides  for  the  taking  of  a  national  census. 
''The  actual  enumeration  shall  be  made  within  three 
years  after  the  first  meeting  of  the  Congress  of  the 
United  States,  and  within  every  subsequent  term  of 
ten  years,  in  such  manner  as  they  shall  by  law  direct. ' ' 
This  clause  gives  the  outside  limits  as  to  period  of 
time  from  one  census  to  the  next.  It  does  not  say  that 
the  nation  may  not  take  a  continual  census.  In  point 
of  fact,  under  that  clause  it  has  been  customary  for 
the  nation  to  collect,  year  by  year,  such  reports  of 
births  and  deaths  as  seem  to  the  officers  of  the  Bureau 
of  Census  reliable.  The  Bureau  has  also  collected  in 
the  general  census  data  relative  to  various  public 
health  problems,  such  as  blindness,  deafness,  mental 
disease,  and  the  like.    If  the  nation  has  any  power  to 


PUBLIC    HEALTH    POWERS   AND   LIMITATIONS  257 

collect  such  data  it  must  have  the  authority  to  do  so 
completely.  It  would  seem,  therefore,  that  under  the 
census  clause  the  nation  has  authority  to  require  the 
regular  reports  of  births  and  deaths,  and  the  recording 
of  the  same,  and  also  an  act  requiring  the  reports  of 
morbidity  and  accidents. 

At  first  the  national  census  was  taken  once  in  ten 
years  by  a  service  organized  for  that  particular  census. 
This  method  was  not  found  to  be  efficient,  and  as  early 
as  1845  the  then  Secretary  of  the  Treasury,  Bibb,  urged 
upon  Congress  the  formation  of  a  permanent  Bureau, 
in  order  to  avoid  a  recurrence  of  errors.21  But  it  is 
not  only  to  prevent  errors  that  a  permanent  organiza- 
tion is  desirable.  As  was  pointed  out  in  an  article  by 
Prof.  Wilcox,22  a  highly  organized  government  should 
provide  for  the  continuous  registration  of  social  phe- 
nomena, as  well  as  for  the  periodical  census  of  social 
conditions.  He  further  set  forth  that  the  establishment 
of  a  permanent  statistical  office  at  Washington,  with  a 
continuous  co-operation  with  state  and  municipal  gov- 
ernments, was  an  essential.  Such  a  permanent  office 
was  established,  and  it  is  now  a  vast  statistical  labora- 
tory. If  there  be  authority  for  the  national  govern- 
ment to  maintain  such  a  permanent  laboratory,  it 
would  seem  that  it  contemplated  real  efficiency  to 
make  the  work  as  perfect  as  possible.  For  such  per- 
fection it  is  essential  that  every  possible  check  and 
counter  check  be  used.  To  make  the  data  as  perfect  as 
possible,  therefore,  and  sufficiently  up  to  date  to  be  of 
greatest  use,  it  is  necessary  that  there  be  a  prompt 
reporting  of  all  births  and  deaths. 

21  Compendium  of  the  Seventh  '  22  Quarterly  Journal  of  Eco- 
Census,  p.  18.  nomics,  Aug.   1900. 


258  PUBLIC   HEALTH   ADMINISTRATION 

§226.  Authority  to  require  reports,  not  authority 
for  prevention.  It  must  be  remembered  that  power 
to  require  reports  of  morbidity  and  accidents  does  not 
empower  the  nation  to  take  steps  to  prevent  such  con- 
ditions. If  the  nation  has  such  power  of  prevention 
this  must  be  found  in  some  other  grant  of  the  Consti- 
tution. The  power  of  prevention  of  evil  or  injury  is 
essentially  police ;  and  because  the  police  power  is  ordi- 
narily reserved  to  the  individual  states,  the  steps  to 
be  taken  to  prevent  the  disease  or  accident  must  re- 
main in  the  states.  It  is  true  that  in  some  cases  the 
nation  has  even  this  power  and  authority  for  preven- 
tion, but  it  is  found  independently  of  authority  to  re- 
quire reports.  Thus,  under  the  commerce  clause,  it  has 
been  possible  to  stop  the  shipment  of  milk  containing 
bacteria  from  one  state  to  another.  Safety  appliances 
have  been  required  on  railroads  doing  an  interstate 
business.  This  does  not  indicate  that  the  nation  has 
the  authority  to  prevent  the  shipment  of  infected  milk 
from  one  place  to  another  within  the  state,  nor  that  it 
may  require  safety  appliances  in  factories  located 
within  individual  states.  While  this  last  power  might 
possibly  be  found,  it  must  be  found  in  other  clauses 
of  the  constitution,  and  neither  from  such  as  would 
require  reports,  nor  such  as  refer  to  commerce. 
Legally  speaking,  authority  for  acts  very  similar,  or 
most  intimately  connected,  may  be  widely  separated. 

§227.  Vital  statistics  not  essentially  health  meas- 
ures. A  record  of  a  birth  or  of  a  death  is  not  essen- 
tially a  health  measure.  The  mere  report  does  little 
towards  enabling  a  health  official  to  prevent  future 
sickness  and  future  deaths.  It  is  true  that  sometimes 
a  death  report  discloses  the  existence  of  an  infectious 


PUBLIC    HEALTH    POWERS    AND    LIMITATIONS  259 

disease;  but  that  particular  case  has  ceased  to  exist 
before  the  death  report  has  been  filed.  The  death 
report  therefore  does  not  enable  the  health  officer  to 
do  anything  to  mitigate  that  case,  nor  does  it  ordi- 
narily give  him  aid  in  discovering  other  possible  cases. 
Taken  together  the  records  of  deaths  are  valuable  aids 
in  the  study  of  diseases  in  a  community,  and  birth 
reports  taken  with  death  records  are  important  guides. 
Individually  considered,  the  value  of  a  record  of  a 
birth,  or  of  a  death,  is  almost  absolutely  limited  to 
its  use  as  evidence.  It  seems  an  error,  therefore,  to 
seek  authority  for  requiring  such  reports  in  the  police 
power,  the  essence  of  which  is  the  prevention  of  evils. 
There  seems  to  be  full  authority  in  several  clauses  of 
the  federal  Constitution  for  the  enactment  of  a 
national  law  requiring  the  recording  of  births  and 
deaths  which  occur  within  the  borders  of  this  country. 
Although  the  power  may  rest  with  the  nation,  as  a 
problem  of  expediency,  or  advisability,  it  may  not  seem 
as  yet  to  be  advisable;  but  inasmuch  as  a  uniform 
system  is  greatly  to  be  desired,  and  because  the  indi- 
vidual state  governments  have  frequently  shown  a 
local  influence  antagonistic  to  the  most  perfect  system, 
and  further,  because  the  value  of  collected  statistics 
increases  in  proportion  to  their  amplitude,  other  things 
being  equal,  it  appears  that  for  greatest  value  the 
Congress  should  enact  such  statutes  as  may  be  neces- 
sary. Again  on  the  ground  of  expediency  it  might  be 
best  that  in  states  having  an  efficient  registration  the 
business  be  conducted  in  a  sort  of  partnership.  Indi- 
vidual states  may  need  some  special  information,  or 
need  it  immediately,  for  certain  administrative  state 
business.     The  partnership  arrangement  would  thus 


260  PUBLIC   HEALTH   ADMINISTRATION 

prevent  duplication  of  work.  On  the  other  hand,  in 
states  which  have  neglected  to  enact,  or  enforce, 
efficient  state  statutes  relative  to  the  registration  of 
births  and  deaths,  the  federal  law  should  be  enforced 
by  federal  officials,  ignoring  local  governments. 

§  228.  Specified  and  implied  powers.  It  is  true  that 
we  do  not  find  it  written  in  the  Constitution  that  Con- 
gress "shall  have  power  to  enact  laws  requiring  the 
reporting  of  all  births  and  deaths."  "The  Constitu- 
tion unavoidably  deals  in  general  language.  It  did 
not  suit  the  purpose  of  the  people  in  framing  this  great 
charter  of  our  liberties  to  provide  for  minute  specifica- 
tions of  its  powers,  or  to  declare  the  means  by  which 
those  powers  should  be  carried  into  execution."23 

As  Chief  Justice  Marshall  put  it:  "America  has 
chosen  to  be,  in  many  respects  and  to  many  purposes, 
a  nation,  and  for  all  these  purposes  her  government  is 
complete;  for  all  these  objects  it  is  supreme.  It  can 
then,  in  effecting  these  objects,  legitimately  control  all 
individuals  or  governments  within  the  American  ter- 
ritory. ' ' 24 

A  careful  study  of  the  Constitution  reveals  the  fact 
that  those  powers  are  reserved  to  the  individual  states 
which  operate  and  affect  only  within  the  state  limits. 
They  are  strictly  matters  of  private  interest  to  the 
state.  Those  affairs  which,  though  occurring  within 
one  state,  affect  also  the  residents  of  other  states,  are 
matters  of  national  concern.  Authority  over  such 
must,  if  the  United  States  be  a  nation,  remain  either 

23  Martin   v.   Hunter,    1   Wheat.  24  Cohens  v.  Bank  of  Virginia,  6 

326;  also  McCulloch  v.  Maryland,      Wheat.  414. 
4  Wheat.  316;  Cohens  v.  Bank  of 
Virginia,    6    Wheat.    414;     Legal 
Tender  Cases,  12  Wall.  457. 


PUBLIC    HEALTH    POWERS    AND    LIMITATIONS  261 

supremely,  or  exclusively,  with  the  national  govern- 
ment. Executive  authority  over  a  subject  implies  an 
equal  degree  of  legislative  power,  and  both  imply 
judicial  power.  The  three  branches  of  government  are 
equal  in  dignity,  and  completive  of  each  other.  With 
the  development  of  interstate  and  international  rela- 
tionships, the  importance  of  the  United  States  as  a 
nation  must  increase;  and  because  of  that  fact, 
authority  and  power  which  before  lay  dormant  must  be 
exercised.  In  the  earlier  years  even  under  the  Con- 
stitution there  would  be  relatively  very  few  occasions 
for  protecting  the  persons  and  property  of  Americans 
in  foreign  lands.  Today  the  United  States  is  a  recog- 
nized world  power.  Our  islands  get  the  first  rays  of 
the  rising  sun,  and  other  of  our  lands  watch  his  setting. 
There  is  no  part  of  the  world  in  which  we  are  not  to 
some  degree  interested.  A  nation  is  not  the  result  of 
an  enactment.  The  enactment  of  a  constitution  is  the 
result  of  the  development  of  a  nation.  Neither  is  a 
nation  the  product  of  a  moment ;  it  is  rather  the  ripen- 
ing product  of  growth.  Its  existence  as  a  nation  pre- 
supposes power  and  authority  commensurate  with  its 
needs.  When  its  infant  clothing  restricts  too  much 
its  growth,  the  clothing  must  be  changed;  but  appar- 
ently the  Constitution  which  was  so  wisely  framed  by 
our  fathers  provides  for  all  the  power  and  authority 
which  we  may  require  for  some  time  in  the  future. 
Custom  may  be  a  chain  to  retard  progress.  The  fact 
that  a  power  has  not  been  used  does  not  argue  that  the 
power  has  not  existed,  but  that  necessity  for  its  use 
has  not  been  sufficiently  strong  to  require  it.  Today 
we  are  a  nation  as  never  before.  As  a  nation  we  have 
need  of  powers  which  before  were  possibly  of  doubtful 


262  PUBLIC   HEALTH   ADMINISTRATION 

value.  Those  were  chiefly  implied  powers.  Other 
powers  were  distinctly  specified  in  the  Constitution. 
Since  the  demand  for  a  federal  Constitution  arose 
largely  from  commercial  circles,  and  on  account  of 
complications  referable  to  commercial  transactions,  it 
was  very  natural  that  commercial  powers  should 
receive  especial  attention ;  and  among  the  public  health 
functions  of  the  federal  government  there  are  probably 
none  of  greater  importance  than  those  which  pertain 
to  commerce.  Aside  from  the  matters  pertaining  to 
interstate  and  international  trade,  specific  power  is 
given  over  territories,  and  over  lands  owned  by  the 
federal  government. 

§  229.  Powers  of  the  nation — Territories.  Article 
IV,  Section  3,  Paragraph  2,  of  the  federal  Constitu- 
tion provides :  ' '  The  Congress  shall  have  power  to  dis- 
pose of  and  make  all  needful  rules  and  regulations 
respecting  the  territory  or  other  property  belonging 
to  the  United  States;  and  nothing  in  this  Constitution 
shall  be  so  construed  as  to  prejudice  any  claims  of  the 
United  States,  or  of  any  particular  state.' ' 

The  first  portion  of  this  paragraph  seems  to  give  to 
Congress  all  needed  authority  for  the  administration 
of  the  government  of  such  territories  and  colonies  as 
may  from  time  to  time  come  under  our  control.  More- 
over, the  very  right  of  ownership  in  such  territorial 
lands  presupposes  also  the  power  and  duty  to  govern 
them  in  accordance  with  the  spirit  of  our  government. 
In  the  American  Insurance  Company  v.  Canter,25  Chief 
Justice  Marshall  says :  ' '  Perhaps  the  power  of  govern- 
ing the  territory  belonging  to  the  United  States, 
which  has  not  by  becoming  a  state  acquired  the  means 

as  l   Peters,   511,   542. 


PUBLIC    HEALTH    POWERS   AND    LIMITATIONS  263 

of  self  government,  may  result  necessarily  from  the 
facts  that  it  is  not  within  the  jurisdiction  of  any  par- 
ticular state,  and  is  within  the  power  and  jurisdiction 
of  the  United  States.  The  right  to  govern  may  be  the 
inevitable  consequence  of  the  right  to  acquire  terri- 
tory. ' '  Mr.  Justice  Marshall  further  says  in  this  case : 
"In  legislating  for  them  (i.  e.,  the  territories),  Con- 
gress exercises  the  combined  powers  of  the  general  and 
of  a  state  government." 

Without  specially  prolonging  the  general  consider- 
ation of  this  subject  we  may  quote  the  following  sum- 
mary: 26  "That  Congress  possesses  the  power  to  legis- 
late for  the  territories;  that  this  power  is  exclusive; 
that  it  may  be  exercised  directly,  or  delegated  to  local 
governments  set  up  by  Congress  and  retained  under  its 
supervision,  are  propositions  of  constitutional  con- 
struction settled  by  the  uniform  practice  of  the  govern- 
ment and  by  the  unvarying  decisions  of  the  Supreme 
Court.  The  contrary  dogma,  that  the  inhabitants  of  a 
territory  have  the  entire  control  of  their  own  local 
concerns,  and  may  form  their  governments  independ- 
ently of  the  national  legislature,  never  rose  above  the 
level  of  a  mere  party  cry;  if  never  obtained  the  assent 
of  any  department  of  government,  and  has  been  dis- 
tinctly repudiated  by  the  Supreme  Court." 

The  right  to  make  laws  implies  the  right  to  enforce 
them.  This  right  of  legislation  therefore  carries  with 
it  executive  and  judicial  authority  also.  Since  "Con- 
gress exercises  the  combined  powers  of  the  general 
and  of  a  state  government,"  and  as  the  public  health 
administration  is  ordinarily  in  the  hands  of  the  state, 

26  Pomeroy,  Constitutional  Law, 
Sec.  494. 


264  PUBLIC    HEALTH   ADMINISTRATION 

it  follows  that  the  nation  has  supreme  authority  over 
the  matters  pertaining  to  the  health  of  the  territories. 
Moreover,  it  must  be  remembered  that  police  power 
is  inherent  in  government;  it  cannot  be  alienated.  To 
deny  the  right  of  police  control  over  the  territories  is 
therefore  to  deny  the  right  of  government. 

On  the  other  hand,  anything  which  it  may  be  neces- 
sary to  do  on  the  part  of  the  inhabitants  of  those  lands 
for  the  protection  of  life  and  health  would  be  deemed 
lawfully  done,  under  the  general  rules  of  interpreta- 
tion, provided  that  it  be  done  in  accord  with  the  spirit 
of  our  institutions.  It  must  not  be  so  done  as  to  con- 
flict with  enacted  statutes.  It  must  be  remembered 
that  the  relationship  of  territories  to  the  nation  are 
much  the  same  as  those  which  exist  between  counties 
and  cities  to  state  governments.  The  only  power  as 
to  legislating,  and  in  the  executive  administration, 
residing  in  the  territories  are  such  as  are  distinctly 
given  by  Congressional  action.  It  has  been  the  policy 
of  the  government  to  leave  the  exercise  of  police  power 
in  the  organized  territories  almost  exclusively  in  the 
hands  of  the  territorial  government. 

§230.  Powers  of  nation  over  public  places.  By 
Article  1,  Section  8,  and  Paragraph  17,  of  the  federal 
Constitution,  Congress  is  given  the  authority  ' '  To  exer- 
cise exclusive  legislation  in  all  cases  whatsoever,  over 
such  district  (not  exceeding  ten  miles  square)  as  may, 
by  cession  of  particular  states,  and  the  acceptance  of 
Congress,  become  the  seat  of  government  of  the  United 
States;  and  to  exercise  like  authority  over  all  places 
purchased,  by  the  consent  of  the  legislature  of  the  state 
in  which  the  same  shall  be,  for  the  erection  of  forts, 
magazines,  arsenals,  dockyards,  and  other  needful 
buildings. ' ' 


PUBLIC    HEALTH   POWERS   AND   LIMITATIONS  265 

The  provisions  of  this  paragraph  are  very  broad. 
At  the  time  that  the  Constitution  was  adopted  it  might 
not  have  been  appreciated  how  broad  it  really  was. 
It  covers  not  only  the  class  of  buildings  named,  which 
related  almost  exclusively  to  the  support  of  the  army 
and  navy,  but  also  to  postoffices,  hospitals,  turning 
basins  in  harbors,  needful  shore  defenses,  and  dams. 
The  consent  of  the  legislature  of  the  state  may  be 
specific,  for  a  certain  tract  of  ground  mentioned,  or 
general.  Thus,  the  Eevised  Statutes  of  Illinois  con- 
tain nine  specific  cessions,  and  one  general.  This  ces- 
sion of  governmental  authority  absolutely  ousts  police 
power27  of  the  state  over  the  grounds  thus  ceded, 
though  the  state  may  reserve  the  authority  to  serve 
and  execute  civil  or  criminal  processes  within  the  pre- 
scribed territory.28  Lands  thus  ceded  are  free  from 
the  imposition  of  state  or  municipal  taxes  and  assess- 
ments. 

In  Loughborough  v.  Blake,29  it  was  contended  that 
Congress  was  in  effect  two  bodies,  one  having  the 
general  powers  of  the  national  legislature,  and  the 
other  practically  taking  the  place  of  the  state  legis- 
lature in  enacting  laws  for  the  territories.  It  was 
therefore  claimed  that  a  general  tax  assessed  upon 
the  states  and  District  of  Columbia  was  not  proper; 
that  though  Congress  had  the  power  to  levy  taxes  upon 
the  District  of  Columbia,  those  taxes  should  be  for 
District  purposes  only.  The  court  did  not  directly 
answer  this  contention,  but  it  clearly  affirmed  that  the 
power  of  legislation  also  included  the  power  of  taxing. 

As  a  general  proposition  it  may  be  stated  that  every 

27  Freimd,  Police  Power,  67.  2t>  5  Wheaton,  317. 

28  Eevised    Statutes    of    Illinois, 
Chap.  143,  Sec.  29. 


266  PUBLIC    HEALTH   ADMINISTRATION 

power  which  the  national  government  has  over  the 
individual  states,  it  also  has  over  the  territories, 
colonial  possessions,  District  of  Columbia,  and  such 
grounds  and  property  as  it  may  have  purchased  for 
public  uses.  The  converse  is  not  true.  Congress  has 
powers  over  territories  and  public  places  which  it  may 
not  use  in  individual  states.  Under  police  power  a 
law  prohibiting  mixed  marriages  within  the  District 
of  Columbia  would  probably  be  declared  binding,  but 
a  similar  law  enacted  for  the  nation  would  be  uncon- 
stitutional. 

Ordinarily,  with  the  recession  of  a  tract  of  land 
the  state  again  acquires  police  jurisdiction.  This  is  not 
always  true,  as  is  shown  in  the  case  of  Ohio  v. 
Thomas.30  April  3,  1867,  Ohio  ceded  to  the  United 
States  a  certain  tract  of  ground  for  a  National  Asylum 
for  disabled  volunteer  soldiers.  The  management  of 
the  asylum  was  in  the  care  of  a  Board  of  Managers 
incorporated  by  action  of  Congress  for  that  purpose. 
January  21,  1871,  Congress  ceded  this  ground  back  to 
the  state,  but  the  act  contained  the  following  clause: 
"Provided,  that  nothing  contained  in  this  act  shall 
be  construed  to  impair  the  powers  heretofore  conferred 
upon  the  Board  of  Managers  of  the  National  Asylum 
for  Disabled  Volunteer  Soldiers,  incorporated  under 
said  act,  in  and  over  said  territory."  The  Governor 
of  the  Asylum  was  arrested  by  an  officer  of  the  state 
for  violation  of  the  state  oleomargerine  law.  After 
trial  and  conviction  before  a  justice  court  the  governor 
of  the  home  was  fined  $50.00.  and  sentenced  to 
imprisonment  until  the  fine  should  be  paid.  He  was 
released  on  a  writ  of  habeas  corpus  from  the  U.  S.  Dis- 

30  173  U.   S.   276. 


PUBLIC    HEALTH    POWERS   AND    LIMITATIONS  267 

trict  Court.  The  state  appealed,  and  the  case  ulti- 
mately reached  the  Supreme  Court,  which  upheld  the 
act  of  the  lower  federal  court.  The  effect  of  this 
decision  is  practically  that,  though  for  most  purposes 
the  state  had  reacquired  full  authority  in  the  premises, 
it  could  not  use  its  power  of  police  to  interfere  with 
any  of  the  operations  of  the  management  of  the  home 
which  were  within  the  authority  given  by  Congress. 
In  the  reasoning  of  the  court  more  stress  was  laid  upon 
the  personal  factor — upon  the  fact  that  the  governor 
of  the  home  was  acting  practically  as  an  officer  of  the 
government  and  in  the  line  of  duty,  because  the  case 
was  really  one  of  habeas  corpus,  and  the  relative 
powers  of  nation  and  state  in  matters  of  sanitation 
were  not  exhaustively  discussed. 

§231.  Powers  of  the  nation,  among  states.  Grant- 
ing that  the  basis  of  governmental  action  for  the 
preservation  of  health  is  found  in  police  power,  and 
that  this  power  is  reserved  to  the  individual  states, 
does  it  follow  that  the  national  government  has  neither 
duties,  authority,  nor  power  to  safeguard  the  lives  of 
the  citizens  who  chance  to  reside  in  organized  states? 
It  is  evident  that  such  possibilities  as  are  at  present 
offered  to  the  federal  government  must  be  indirect, 
rather  than  direct.  Chief  of  these  indirect  powers  for 
the  preservation  of  public  health  is  that  found  in  Sec- 
tion 8,  of  the  first  Article  of  the  Constitution,  which 
gives  to  Congress  the  power:  "3.  To  regulate  com- 
merce with  foreign  nations,  and  among  the  several 
states,  and  with  the  Indian  tribes." 

§  232.  Regulation  of  commerce.  We  are  told  by  Mr. 
Justice  Marvin31  that  "A  leading  object  of  the  Con- 

3i  Metropolitan     Bank    v.    Van 
Fyck,  13  Smith    (N.  Y.)   508. 


268  PUBLIC   HEALTH   ADMINISTRATION 

stitution  was  to  get  rid  of  all  conflicting  commercial 
interests,  and,  as  to  commerce,  to  effect  a  union  of  all 
the  people,  of  all  the  states,  great  and  small,  and  make 
them  one  people,  one  nation,  without  divided  interests, 
and  without  the  power,  as  states,  to  produce  divided 
interests  or  conflicts. ' ' 32  Before  the  Constitution  was 
adopted,  each  individual  state  placed  such  restrictions, 
as  it  thought  wise,  upon  commerce.  This  made  the 
transaction  of  business  unnecessarily  expensive.  The 
protection  and  fostering  of  business  relationships  is 
one  of  the  important  functions  of  government.  Though 
essentially  the  regulation  of  business  is  a  portion  of 
police,  in  American  law  it  is  not  so  included,  for  the 
reason  that  the  regulation  of  commerce  was  distinctly 
named  as  one  of  the  functions  of  Congress.  Of  neces- 
sity, due  to  the  exigencies  of  the  case,  therefore,  Con- 
gress was  given  the  power  to  regulate  commerce. 

§  233.  Commerce  includes  what?  By  the  interpreta- 
tions of  the  Supreme  Court  the  word  commerce,  as 
intended  in  the  Constitution,  is  very  broad.  It  includes 
the  means  used  for  the  conduct  of  trade  with  foreign 
nations,  and  between  the  states,  and  the  subjects  of 
that  trade.  The  means  used  include  the  supervision  of 
navigation  and  railroads.  Congress  thus  takes  con- 
trol over  navigable  waters  which  may  be  used  in  inter- 
state traffic,  and  over  the  construction  and  operation  of 
railroads.  It  may  legislate  as  to  the  composition  of 
the  substances  forming  a  portion  of  interstate  traffic. 
Persons  as  well  as  merchandise  are  included  under  the 
term  commerce.33     "Congress  has  not  only  the  right 

32  See  also   Prentice  and   Egan,  33  Passenger    Cases,    7    Howard, 

Commerce  Clause,  Federal  Consti-       283. 
tution,  p.  1. 


PUBLIC    HEALTH    POWERS    AND   LIMITATIONS  269 

to  pass  laws  regulating  legitimate  commerce  among 
the  states  and  with  foreign  nations,  but  also  has  full 
power  to  bar  from  the  channels  of  such  commerce 
illicit  and  harmful  articles."338  ''Disease,  pestilence, 
and  pauperism  are  not  subjects  of  commerce,  although 
among  its  attendant  evils.  They  are  not  things  to  be 
regulated  and  trafficked  in,  but  to  be  prevented,  as 
far  as  human  foresight  or  human  means  can  guard 
against  them. ' ' 34  The  national  government  has  there- 
fore used  its  inherent  police  power  to  prevent,  by 
means  of  quarantine,  the  importation  of  disease  from 
foreign  lands.  This  in  no  way  interferes  with  the 
police  power  of  the  individual  states.  It  is  the  duty 
of  the  state,  under  its  police  power,  to  protect  the 
health  and  lives  of  its  citizens.  National  quarantine 
therefore  simply  assists  the  state  in  this  protection. 

§  234.  Pure  foods  and  drugs.  Through  its  power 
to  regulate  commerce  between  the  states  Congress  has 
seen  fit  to  pass  statutes  determining  standards  of 
purity  for  foods  and  drugs,  and  to  prohibit  the  sale 
of  goods  not  properly  labeled,  or  not  coming  up  to  the 
standard  adopted.  (Chap.  XVII.)  This  power  of  Con- 
gress is  clearly  limited  to  goods  forming  a  part  of 
interstate  traffic.  It  may  not  determine  for  any  state 
what  shall  be  the  standard  of  purity  used  for  goods 
manufactured  and  sold  within  that  state,  but  no  state 
may  fix  a  standard  which  shall  prevent  the  sale,  in  the 
original  package,  of  goods  forming  a  portion  of  inter- 
state traffic. 

Since  the  national  control  over  the  subject  of  purity 

33a  McDermott  v.  Wisconsin,  228  Mass. ;  Fletcher  v.  Rhode  Island  ; 
TJ.  S.  115.  Peiree  v.  New  Hampshire,  5  How- 

34  License     Cases,     Thurlow     v.       ard,  504. 


270  PUBLIC    HEALTH   ADMINISTRATION 

of  food  and  drugs  is  commercial  in  nature,  it  follows 
that  laws  passed  for  that  purpose  must  be  considered 
on  a  commercial  basis.  The  fact  that  such  a  law  may 
protect  health  of  citizens  is  incidental.  The  Act  of 
June  30,  1906,  which  went  into  effect  January  1,  1907, 
was  the  first  enactment  by  the  national  government  to 
fix  a  standard  of  purity.  The  conditions  under  which 
drugs  and  foods  were  to  be  considered  impure,  adul- 
terated, or  misbranded  for  the  purposes  of  the  act  are 
there  stated  very  definitely,  and  the  constitutionality 
of  the  act  has  been  repeatedly  upheld.  In  Section  7, 
the  fifth  provision  relative  to  adulteration  in  the  case 
of  food  says: 

"If  it  contain  any  added  poisonous  or  other  added 
deleterious  ingredient  which  may  render  such  article 
injurious  to  health :  provided,  that  when  in  the  prepara- 
tion of  food  products  for  shipment  they  are  preserved 
by  any  external  application  applied  in  such  a  manner 
that  the  preservative  is  necessarily  removed  mechanic- 
ally, or  by  maceration  in  water,  or  otherwise,  and  direc- 
tions for  the  removal  of  said  preservative  shall  be 
printed  on  the  covering  or  the  package,  the  provisions 
of  this  act  shall  be  construed  as  applying  only  when 
said  products  are  ready  for  consumption." 

It  will  be  noticed  that  there  is  a  possible  question 
as  to  when  a  food  product  may  contain  a  poisonous 
ingredient.  Benzoate  of  soda  has  been  used  as  a  pre- 
servative. In  large  quantities  it  is  harmful;  in  small 
quantities  it  may  not  be  harmful.  The  determination 
as  to  this  harmfulness  is  primarily  executive  by  the 
terms  of  the  act,  and  in  the  Bureau  of  Chemistry  in 
the  Department  of  Agriculture.  If  it  shall  appear  that 
the  terms  of  the  act  have  been  violated  the  Secretary 


PUBLIC    HEALTH    POWERS   AND    LIMITATIONS  271 

of  Agriculture  must  give  to  the  party  from  whom  the 
sample  was  obtained,  notice  and  opportunity  to  be 
heard.  If  then  it  shall  appear  that  the  terms  of  the 
act  have  been  violated  the  case  is  to  be  certified  to  the 
District  Attorney  for  prosecution.  The  harmfulness 
of  the  ingredient  is  then  a  question  of  fact,  to  be  proven 
before  the  court.  The  decision  does  not  rest  with  the 
Secretary  of  Agriculture.  Much  less  does  it  rest  with 
the  Bureau  of  Chemistry.  It  is  a  question  of  fact,  and 
not  of  opinion.  Moreover,  it  is  a  question  of  fact  to 
be  determined  specifically  for  each  article,  and 
although  one  decision  may  serve  as  a  precedent  and 
guide  for  similar  future  cases,  one  case  may  not  defi- 
nitely fix  the  law,  as  would  a  decision  involving  the 
interpretation  of  an  act.  Another  case,  exactly  similar, 
but  in  the  light  of  further  evidence,  may  be  determined 
quite  the  reverse. 

Section  8  of  the  act  further  provides  that  an  article 
may  be  deemed  misbranded,  if  the  package  or  label 
shall  bear  any  statement  regarding  the  ingredients  or 
substances  "which  shall  be  false  or  misleading  in  any 
particular. ' '  This  is  another  question  of  fact,  and  not 
of  opinion.  It  is  to  be  determined  by  the  court.  One 
Johnson  shipped  packages  of  medicine  from  Missouri 
to  Washington,  and  the  packages  bore  labels  that 
stated  or  implied  that  the  contents  were  effective  in 
curing  cancer.  On  the  ground  that  such  representa- 
tions were  false,  prosecution  was  begun,  but  on  motion 
of  the  defendant  the  District  Judge  quashed  the  indict- 
ment.35 A  writ  of  error  brought  the  case  to  the 
Supreme  Court,36  and  Mr.  Justice  Holmes  gave  the 

35  U.  S.  v.  Johnson,  177  Fed.  36  U.  S.  v.  Johnson,  221  U.  S. 
Rep.  313.  488. 


272  PUBLIC    HEALTH    ADMINISTRATION 

opinion  of  the  court,  to  the  effect  that  though  such  a 
statement  was  misleading,  it  was  not  clearly  mislead- 
ing in  the  sense  intended  in  the  act.  "It  was  much 
more  likely  to  regulate  commerce  in  food  and  drugs 
with  reference  to  plain  matter  of  fact,  so  that  food 
and  drugs  should  be  what  they  professed  to  be,  when 
the  kind  was  stated,  than  to  distort  the  uses  of  its 
constitutional  power  to  establishing  criteria  in  regions 
where  opinions  are  far  apart.  As  we  have  said  above, 
the  reference  of  the  question  to  the  Bureau  of  Chem- 
istry for  determination  confirms  what  would  have  been 
our  expectation,  and  what  is  our  understanding  of  the 
words  immediately  in  point."  Mr.  Justice  Hughes 
(Justices  Harlan  and  Day,  concurring)  gave  the  dis- 
senting opinion,  holding  that  the  terms  of  the  act  did 
cover  such  misrepresentation  as  in  this  case.    He  said: 

"Granting  the  wide  domain  of  opinion,  and  allow- 
ing the  widest  range  to  the  conflict  of  medical  views, 
there  still  remains  a  field  in  which  statements  as  to 
curative  properties  are  downright  falsehoods  and  in 
no  sense  expressions  of  judgment.  This  field  I  believe 
this  statute  covers.  *  *  *  The  question  then  is 
whether,  if  an  article  is  shipped  in  interstate  com- 
merce, bearing  on  its  label  a  representation  that  it 
is  a  cure  for  a  given  disease,  when  on  a  showing  of  the 
facts  there  would  be  a  unanimous  agreement  that  it 
was  absolutely  worthless  and  an  out  and  out  cheat, 
the  act  of  Congress  can  be  said  to  apply  to  it.  To  my 
mind  the  answer  appears  clear.     *     *     * 

"Nor  does  it  seem  to  me  that  any  serious  question 
arises  in  this  case  as  to  the  power  of  Congress.  I  take 
it  to  be  conceded  that  misbranding  may  cover  state- 
ments as  to  strength,  quality,  and  purity.    But  so  long 


PUBLIC    HEALTH    POWERS   AND   LIMITATIONS  273 

as  the  statement  is  not  as  to  matter  of  opinion,  but 
consists  of  a  false  representation  of  fact — in  labeling 
the  article  as  a  cure  when  it  is  nothing  of  the  sort 
from  any  point  of  view,  but  wholly  worthless — there 
would  appear  to  be  no  basis  for  a  constitutional  dis- 
tinction. It  is  none  the  less  descriptive — and  falsely 
descriptive — of  the  article.  Why  should  not  worthless 
stuff,  purveyed  under  false  labels  as  cures,  be  made 
contraband  of  interstate  commerce,  as  well  as  lottery 
tickets  1 37  I  entirely  agree  that  in  any  case  brought 
under  the  act  for  misbranding, — by  a  false  or  mislead- 
ing statement  as  to  curative  properties  of  an  article — 
it  would  be  the  duty  of  the  court  to  direct  an  acquittal 
when  it  appeared  that  the  statement  concerned  a  mat- 
ter of  opinion.  Conviction  would  stand  only  where  it 
had  been  shown  that,  apart  from  any  question  of  opin- 
ion, the  so-called  remedy  was  absolutely  worthless  and 
hence  the  label  demonstrably  false;  but  in  such  case  it 
seems  to  me  to  be  fully  authorized  by  the  statute. ' ' 

It  will  be  noticed  that  the  only  difference  of  view 
between  the  opinion  of  the  majority  and  minority  of 
the  Court  was  whether  or  not  the  curative  effect  were 
a  matter  of  opinion.  Mr.  Justice  Holmes  in  his  opinion 
stated  clearly:  "It  is  a  postulate,  as  the  case  comes 
before  us,  that  in  a  certain  sense  the  statement  on  the 
label  was  false,  or,  at  least,  misleading."  The  indict- 
ments affirmed  "when  in  truth  and  fact  said  article  is 
wholly  worthless  and  ineffective  in  bringing  about  the 
cure  of  cancer,  as  he,  the  said  0.  A.  Johnson,  then  and 
there  well  knew."  It  does  not  appear  that  the  said 
Johnson,  in  his  motion  to  quash,  or  otherwise,  in  any 

37  Champion  v.  Ames,  188  U.  S. 
331. 


274  PUBLIC    HEALTH    ADMINISTRATION 

way  denied  this  allegation  in  the  indictments.  It  was 
in  the  opinion  of  Mr.  Phillips,  District  Jndge,  that  we 
find  the  statement  as  to  curative  effect  designated  as  a 
matter  of  opinion.  Why,  under  the  circumstances,  it 
was  so  designated  by  Mr.  Justice  Holmes,  therefore, 
does  not  appear. 

The  Court  was  in  agreement  as  to  the  fact  that  the 
act  was  intended  to  protect  the  citizens  in  the  genuine- 
ness of  the  article  itself,  and  was  not  so  much  con- 
cerned with  the  effect  of  the  article  of  commerce  upon 
the  citizens.  It  intended  that  when  a  citizen  of  one 
state  purchased  an  article  from  a  foreign  country,  or 
from  another  state,  he  might  depend  upon  its  being 
just  what  he  desired.  In  other  words,  as  the  act  stands, 
.it  is  a  regulation  of  commerce,  and  not  an  exercise  of 
police  power  in  the  American  signification  and  limita- 
tion. True,  the  line  between  the  two  is  not  always 
clear,  but  it  must  be  remembered. 

§235.  Determination  by  executive.  It  will  be 
noticed  that  the  first  hearing  of  cases  under  the  Pure 
Food  Law  is  before  an  executive  officer.  It  is  not  his 
province  to  interpret  the  law.  He  is  not  to  decide  as 
to  the  scope  of  the  intent  of  Congress.  He  is  to 
determine  matters  of  fact.  His  determination  of  mat- 
ters of  fact,  by  the  terms  of  the  law  itself,  is  not  final, 
but  it  must  then  be  passed  to  the  courts  for  final  settle- 
ment. The  provision  that  the  case  must  be  submitted 
to  the  court  is  not  a  matter  of  inherent  necessity.  The 
law  might  have  provided  that  the  determination  as  to 
matters  of  fact  by  the  executive  department  should 
be  final.  ' '  The  Land  Department  of  the  United  States 
is  Administrative  in  its  character,  and  it  has  been  fre- 
quently held  by  this  Court  that  in  the  administration 


PUBLIC    HEALTH    POWERS    AND    LIMITATIONS  275 

of  the  public  land  system  of  the  United  States  ques- 
tions of  fact  are  for  the  consideration  and  judgment 
of  the  Land  Department,  and  its  judgment  thereon  is 
final."38  But,  the  executive  has  no  unlimited  power 
to  pass  upon  matters  of  fact.  He  must  find  his 
authority  in  the  statute.  The  Postmaster  General 
decided  after  investigation  that  a  certain  institution 
was  essentially  fraudulent,  and  denied  to  the  institu- 
tion the  use  of  the  mails.  The  Court  held  that  he  had 
exceeded  his  authority,  saying:  "His  right  to  exclude 
letters,  or  to  refuse  to  permit  their  delivery  to  persons 
addressed  must  depend  upon  some  law  of  Congress, 
and  if  no  such  law  exist,  then  he  cannot  exclude  or 
refuse  to  deliver  them. ' ' 39 

§  236.  Interstate  commerce  includes  persons.  As  we 
have  previously  stated,  persons,  as  well  as  live  stock 
and  ordinary  articles  of  merchandise,  are  subjects  of 
interstate  commerce.40  This  by  no  means  implies  that 
the  persons  so  included  are  articles  of  merchandise. 
Under  this  commerce  clause,  therefore,  Congress  has 
full  power  to  regulate  the  entrance  of  persons  into  the 
country,  and  their  passage  from  one  state  to  another. 
Under  this  clause  Congress  has  legislated  to  prohibit 
the  entrance  of  undesirable  persons  from  foreign  lands. 
It  excludes  paupers,  those  mentally  deficient,  and  those 
afflicted  with  certain  diseases.  The  determination  of 
fact  may  be  made  by  the  executive  officers.41 

38  American     School     of     Mag.  Healing  v.  McAnnulty,  187  U.  S. 

Healing  v.  McAnnulty,  187  U.  S.  94,  109. 

94;   citing  Burfenning  v.  Chicago,  *o  Passenger    Cases,    7    Howard, 

etc.,    E,    E.    Co.,    163   U.    S.    321;  283. 

Johnson  v.  Drew,  171  U.  S.  94,  99;  *i  Japanese    Immigration    Case, 

Gardner    v.    Bonestell,    180    U.    S.  189  U.  S.  86;   IT.  S.  v.  Williams, 

362.  194  U.  S.  279. 

3n  Amprican  School  of  Magnetic 


276  PUBLIC    HEALTH   ADMINISTRATION 

§237.  White  slave  traffic.  More  recently  we  have 
the  decisions  under  the  Mann  Act,  designed  to  stop 
the  transportation  of  women  and  girls  from  one  state 
to  another  for  immoral  purposes.  One  Effie  Hoke, 
aided  by  Basil  Economides,  enticed  a  woman  from  New 
Orleans  to  Beaumont,  Texas,  and  was  prosecuted  for 
violation  of  the  act.  The  defense  was  purely  based 
upon  the  exclusive  police  power  of  the  state,  and  that 
the  regulation  of  prostitution  was  therefore  the  duty 
of  the  state  with  which  the  national  government  had  no 
authority  to  interfere.  The  Court  said:  "The  power 
of  Congress  under  the  commerce  clause  of  the  Con- 
stitution is  the  ultimate  determining  question.  If  the 
statute  be  a  valid  exercise  of  that  power,  how  it  may 
affect  persons  or  states  is  not  material  to  be  con- 
sidered. It  is  the  supreme  law  of  the  land,  and  persons 
and  states  are  subject  to  it.  Congress  is  given  power 
'  to  regulate  commerce  with  foreign  nations  and  among 
the  several  states.'  The  power  is  direct;  there  is  no 
word  of  limitation  in  it.  Commerce  among  the  states 
consists  of  intercourse  and  traffic  between  their  citi- 
zens, and  includes  the  transportation  of  persons  and 
property;  that  is,  a  person  may  move  or  be  moved  in 
interstate  commerce. 

"Our  dual  form  of  government  has  its  perplexities, 
state  and  nation  having  different  spheres  of  jurisdic- 
tion, as  we  have  said,  but  it  must  be  kept  in  mind  that 
we  are  one  people,  and  the  powers  reserved  to  the 
states  and  those  conferred  on  the  nation  are  adapted 
to  be  exercised,  whether  independently  or  concurrently, 
to  promote  the  general  welfare,  material  and  moral. 
This  is  the  effect  of  the  decisions,  and  surely  if  the 
facility  of  interstate  transportation  can  be  taken  away 


PUBLIC    HEALTH    POWERS    AND    LIMITATIONS  277 

from  the  demoralization  of  lotteries,  the  debasement 
of  obscene  literature,  the  contagion  of  diseased  cattle 
and  persons,  the  impurity  of  food  and  drugs,  the  like 
facility  can  be  taken  away  from  the  systematic 
debauchery  of  women,  and  more  insistently  of  girls." 42 
The  law  was  also  sustained  in  the  same  sitting  of  the 
court  in  Athanasa  v.  United  States,43  Bennett  v.  U.  S.,44 
and  Harris  v.  U.  S.45  In  the  latter  two  cases  it  was 
held,  further,  that  an  error  in  the  name  of  the  person 
transported,  or  in  the  name  of  the  station  at  which 
tickets  were  bought  was  not  sufficient  cause  for  a  rever- 
sion of  decision. 

It  will  be  noticed  that  this  act,  and  the  decisions 
under  it,  are  not  interferences  with  the  police  power  of 
the  states.  The  states  are  still  free  to  act.  Police 
power  is  essentially  restrictive  in  action.  Failure  to 
act  gives  no  special  rights.  A  regulation  which  gives 
permission  is  good  so  far  as  the  limits  of  the  states  are 
concerned,  but  no  further,  and  practically  it  is  as  if 
no  action  were  taken.  It  does  not  prevent  the  state 
from  future  action.  Clearly  then,  the  fact  that  the 
state  has  taken  no  action,  or  that  it  has  practically 
declined  to  act  by  giving  a  permission,  can  in  no  way 
be  considered  as  interfering  with  the  operation  of  Con- 
gress in  regulating  interstate  traffic.  Neither  is  this 
action  of  Congress  an  interference  with  the  police 
power  of  the  state.  The  state  still  has  full  power  to 
put  such  further  restrictions  upon  the  traffic  as  it  may 
reasonably  have  done  before  the  act  of  Congress.  * '  The 
intent  of  Congress  to  supersede  the  exercise  by  the 
states  of  their  police  power  will  not  be  inferred  unless 

42  Hoke  v.  U.  S.,  227  IT.  S.  308.  4*  227  U.  S.  333. 

43  227  U.  S.   326.  45  227  U.   S.   340. 


278  PUBLIC   HEALTH   ADMINISTRATION 

the  act  of  Congress  fairly  interpreted  is  in  actual  con- 
flict with  the  law  of  the  state."46 

Before  the  passage  of  the  Mann  Act  immigrant  pros- 
titutes were  excluded  from  the  country  as  undesirables. 
An  alien,  having  married  a  citizen,  thus  becoming  a 
citizen  herself,  entered  the  country.  When  it  appeared 
that  she  had  become  an  inmate  of  a  house  of  illfame 
she  was  ordered  deported  by  the  immigration  officials.. 
The  order  of  deportation  was  contested,  partly  as  a 
violation  of  "due  process  of  law"  in  that  the  investiga- 
tion was  made  by  an  executive  officer,  and  not  by  a 
court.  The  order  was  sustained,  the  Court  saying  that 
an  attack  on  the  hearing  must  show  that  the  officers 
hearing  them  were  manifestly  unfair.47  Apparently, 
under  this  decision  any  alien  found  in  a  house  of  ill- 
fame  might  be  deported  by  executive  order,  irrespec- 
tive of  the  time  she  had  resided  in  this  country,  and 
the  fact  of  marriage  with  a  citizen  might  be  no  bar.  In 
a  subsequent  case48  it  was  held  that  prostitutes  may 
be  deported  regardless  of  the  time  they  are  in  the 
country. 

§238.  Meaning  of  "interstate."  Ordinarily  there 
could  be  no  question  as  to  interstate  signification. 
"Commerce  among  the  states  consists  of  intercourse 
and  traffic  between  their  citizens,"  that  is,  between  the 
citizens  of  different  states.  The  beginning  and  the 
end  of  the  transaction  may,  however,  be  within  a 
single  state,  and  yet  it  may  be  interstate.  Thus,  a 
shipment  from  Fort  Smith,  Ark.,  to  Grannis,  Ark.,  via 

4e  Savage   v.    Jones,    225   XJ.   S.  *s  Bugajewitz  v.  Adams,  228  IT. 

501;  also  Standard  Stock  &  Food      S.  585. 
Co.  v.  Wright,  225  U.  S.  540. 

**  Low  Wah  Suey  v.  Backus,  225 
IT.   S.  460. 


PUBLIC    HEALTH    POWERS   AND   LIMITATIONS  279 

Spiro,  Indian  Territory,  was  held  to  be  interstate,  and 
therefore  within  the  authority  of  Congress.49  It  is 
true  that  in  certain  cases  involving  the  state  right  to 
levy  tax,  or  to  fix  tariff  a  contrary  opinion  has  been 
held  by  state  courts.  Generally  speaking,  interstate, 
or  foreign  commerce  begins  when  goods  have  been 
manufactured  and  are  consigned  for  shipment  to 
another  point,  and  that  shipment  will  take  them  out- 
side of  the  state  in  which  they  were  before  consign- 
ment. During  that  passage  the  goods  are  a  part  of  the 
interstate  traffic,  and  as  such  they  are  not  subject  to 
state  laws  in  such  a  manner  as  to  interfere  with  the 
passage.  The  track  within  a  state  is  reasonably  sub- 
ject to  local  taxation,  and  the  earning  power  of  the 
road  within  the  state  may  properly  be  considered  sub- 
ject to  taxation ;  but  the  interstate  traffic  is  not  subject 
to  local  tax,  if  in  any  way  such  a  tax  would  operate 
to  interfere  with  the  traffic.  It  is  well  recognized  that 
a  municipality  may,  if  the  state  laws  so  permit,  require 
a  local  license  of  all  who  engage  in  peddling  goods, 
or  in  taking  orders  for  such  goods  to  be  delivered  later. 
In  Caldwell  v.  North  Carolina,50  it  was  held  that  when 
such  an  agent  was  soliciting  orders  for  picture  frames 
to  be  sent  from  another  state  the  operation  of  such  a 
license  was  an  interference  with  interstate  traffic,  and 
to  that  extent  it  was  an  unconstitutional  invadement  of 
the  authority  of  the  nation.  A  police  measure  other- 
wise within  the  constitutional  power  of  the  state  will 
not  be  held  unconstitutional  under  the  commerce 
clause   of  the  federal   Constitution  because   it   inci- 

«  Handley  v.  Kansas  City  South-      267 ;   Sternberger  v.  Cape  Fear  & 
em  Ry.  Co.,  187  U.  S.  617;    also       Y.  V.  R.  R.,  29  S.  C.  510. 
State   v.    Railroad    Co.,    40    Minn.  oo  1S7  U.  S.  622. 


280  PUBLIC   HEALTH   ADMINISTRATION 

dentally  and  remotely  affects  interstate  commerce.51 
Still,  the  regulation  of  the  liquor  traffic  is  an  example 
of  the  use  of  police  power,  and  it  has  been  repeatedly 
held  that  such  laws  must  not  operate  to  stop  the 
delivery  of  original  packages.  The  leading  case  in  this 
line  was  Brown  v.  Maryland.52  The  state  had  enacted 
a  statute  which  required  importers  of  foreign  goods  to 
take  out  a  state  license.  The  case  was  carried  to  the 
Supreme  Court,  and  Chief  Justice  Marshall  delivered 
the  opinion  of  the  Court,  in  which  he  said:  "If  this 
power  reaches  the  interior  of  a  state  and  may  there 
be  exercised,  it  must  be  capable  of  authorizing  the  sale 
of  those  articles  which  it  introduces.  Commerce  is 
intercourse,  one  of  the  most  ordinary  ingredients  of 
traffic.  It  is  unconceivable  that  the  power  to  authorize 
this  traffic,  when  given  in  the  most  comprehensive 
terms,  with  the  intent  that  its  efficacy  should  be  com- 
plete, should  cease  at  the  point  where  its  continuance 
is  indispensable  to  its  value.  To  what  purpose  should 
the  power  to  allow  importation  be  given,  unaccom- 
panied with  the  power  to  authorize  a  sale  of  the  thing 
imported1?  Sale  is  the  object  of  importation,  and  is 
an  essential  ingredient  of  that  intercourse  of  which 
importation  constitutes  a  part.  It  is  as  essential  an 
ingredient,  as  indispensable  to  the  existence  of  the 
entire  thing,  therefore,  as  importation  itself.  It  must 
be  considered  as  a  component  part  of  the  power  to 
regulate  commerce.  Congress  has  a  right,  not  only 
to  authorize  importation,  but  to  authorize  the  importer 
to  sell."    After  asking  what  answer  the  United  States 

si  Plumley  v.   Mass.,   155   U.    S.  32 12  Wheat.  419. 

461;  Silz  v.  Hesterberg,  211  U.  S. 
31. 


PUBLIC    HEALTH    POWERS   AND   LIMITATIONS  281 

could  give,  if  after  permitting  the  importation  of 
foreign  goods  the  sale  of  such  goods  be  hindered,  he 
proceeds  to  say:  "Any  penalty  inflicted  on  the  im- 
porter for  selling  the  article  in  his  character  of 
importer,  must  be  in  opposition  to  the  act  of  Congress, 
which  authorizes  importation.  Any  charge  on  the 
introduction  and  incorporation  of  the  articles  into  and 
with  the  mass  of  property  in  the  country,  must  be 
hostile  to  the  power  given  to  Congress  to  regulate  com- 
merce; since  an  essential  part  of  the  regulation,  and 
the  principle  object  of  it,  is  to  prescribe  the  regular 
means  for  accomplishing  that  introduction  and  incor- 
poration." This  case  referred  to  foreign  commerce, 
but  for  some  time  there  was  a  different  interpreta- 
tion of  the  taxing  power  upon  interstate  traffic.  In 
1868  Mr.  Justice  Miller  delivered  the  decision  in  Wood- 
ruff v.  Parham.53  Alabama  had  imposed  a  tax  upon 
articles  imported  from  other  states  and  sold  in  original 
packages.  This  law  was  sustained,  Mr.  Justice  Miller 
saying  that  it  is  obvious  that  if  articles  brought  from 
another  state  are  exempt  from  taxation,  the  grossest 
injustice  must  prevail.  "The  merchant  who  buys  his 
goods  in  New  York  and  sells  at  wholesale  in  the  origi- 
nal packages,  may  have  his  millions  employed  in  trade 
for  half  a  lifetime  and  escape  all  state,  county,  and 
city  taxes ;  for  all  that  he  is  worth  is  invested  in  goods 
which  he  claims  to  be  protected  as  imports  from  New 
York.  Neither  the  state  nor  the  city  which  protects 
his  life  and  property  can  make  him  contribute  a  dollar 
to  support  its  government,  improve  its  thoroughfares, 
or  educate  its  children."  This  rule  was  followed  in 
Brown  v.  Houston.54 

5a  8  Wall.  123.  s*  H4  u.    S.   622. 


282  PUBLIC    HEALTH   ADMINISTRATION 

In  Bobbins  v.  Taxing  District55  the  ruling  was 
slightly  changed,  in  that  the  power  of  the  state  to  tax 
imported  articles  from  other  states  was  admitted, 
so  long  as  there  was  no  discrimination  against  such 
goods  as  interstate  merchandise.  In  Bowman  v. 
Northwestern  R.  R.  Co.,56  however,  the  court,  by  a 
divided  vote  returned  to  the  earlier  decision  of  Brown 
v.  Maryland,  and  applied  it  to  interstate  traffic.  The 
case  involved  the  right  of  the  railroad  company  to 
transport  liquor  into  Iowa,  in  spite  of  the  state  pro- 
hibition upon  the  liquor  trade.  The  Iowa  law  was  clear 
use  of  its  police  power,  and  it  was  intended  to  preserve 
the  health  and  morals  of  that  community.  It  was 
essentially  a  quarantine  law,  against  an  infectious 
trade.  But  there  is  an  honest  difference  of  opinion 
as  to  whether  or  not  the  liquor  trade  is  essentially  an 
evil,  so  the  Court  said  that  whether  or  not  an  article 
is  a  subject  of  commerce  is  to  be  determined  by  the 
usages  of  the  commercial  world,  rather  than  by  the 
opinion  of  individuals,  or  even  the  enactment  of  states, 
and  in  a  subsequent  case,57  this  right  of  importation 
was  held  to  include  the  right  of  the  importer  to  sell 
the  imported  beer  in  the  original  packages.  On  the 
other  hand,  the  right  of  a  state  to  refuse  to  permit  the 
importation  from  another  state  of  oleomargarine 
colored  in  imitation  of  butter,  was  sustained.58  It  was 
not  denied  that  the  oleomargarine  was  wholesome  and 
fit  for  use  as  food,  but  it  was  in  the  nature  of  a  fraud ; 
it  was  colored  so  that  its  true  character  was  not  easily 
determined    by    the    ordinary    customer.    Commerce 

ss  120  U.   S.  489.  171  U.  S.  1 ;  Vance  v.  Vandercook, 

se  125  U.  S.  465.  170  U.  S.  438. 
57  Leisy  v.  Hardin,  135  U.  S.  100;  ss  Plumley  v.  Massachusetts,  155 

see    also    Sehollenberger    v.    Perm.  U.  S.  461. 


PUBLIC    HEALTH   POWERS   AND   LIMITATIONS  283 

implies  legitimate  trade,  honest  transactions,  and 
though  frauds  may  be  perpetrated  in  the  name  of  com- 
merce they  are  not  legitimate  portions  thereof.  To 
stop  such  frauds  is  not  an  interference  with  commerce. 
The  objection  was  not  that  the  oleomargarine  was 
colored,  but  that  it  was  colored  to  imitate  butter.  Had 
it  been  ordered  by  a  state  statute  that  it  be  colored 
with  a  harmless  red  or  blue  dye  its  character  as  a 
substitute  would  have  been  so  apparent  that,  because 
of  general  prejudice,  the  commerce  would  have  been 
restricted.  Such  a  restriction,  however,  would  not 
have  been  because  of  the  demand  of  the  state  law,  but 
because  of  the  natural  disinclination  of  customers  to 
buy  the  substitute.  Such  a  law  would  not  then  be  an 
interference  with  interstate  traffic,  even  though  it 
might  practically  stop  the  same. 

We  may  say,  therefore,  that  interstate  commerce 
begins  when  legitimate  articles  of  commerce  are  pur- 
chased, or  consigned,  for  shipment  into  another  state, 
or  when  persons  start  on  a  journey  from  one  state  to 
another.  Interstate  commerce  ends  when  the  persons 
have  reached  their  destination,  or  the  goods  have  been 
either  sold  in  unbroken  packages,  or  the  packages 
have  been  broken,  so  that  the  goods  have  become  so 
mixed  with  the  merchandise  of  the  state  as  to  be  a 
real  part  of  the  general  stock.59  In  a  similar  manner, 
persons  may  be  considered  as  a  part  of  interstate  com- 
merce until  they  become  really  a  portion  of  the 
population  of  the  state  into  which  they  move.60  While 
a  person,  or  an  article  of  trade,  is  a  part  of  interstate 
commerce,  he  or  it  is  within  the  jurisdiction  of  the 

59  Low  et  al.  v.  Austin,  80  U.  S.  «"Low  Wah  Suey  v.  Backus,  225 

29.  U.  S.  460. 


284  PUBLIC    HEALTH    ADMINISTRATION 

United  States,  and  not  subject  to  the  laws  of  the  indi- 
vidual states,  except  under  certain  special  cases  where 
as  a  matter  of  the  necessary  use  of  police  power  the 
commerce  may  be  stopped,  either  temporarily  or 
permanently. 

§  239.  What  is  an  original  package?  The  answer  to 
this  question  is  of  so  great  importance,  as  showing  the 
line  of  demarcation  between  the  jurisdiction  of  the 
state  and  the  nation,  that,  without  any  apology  there- 
for, we  shall  copy  the  discussion  found  in  Food  Inspec- 
tion Decision  86,  from  the  Department  of  Agriculture, 
which  is  as  follows: 

Regulation  2  of  the  Rules  and  Regulations  for  the  Enforcement  of 
the  Food  and  Drugs  Act  (Circular  No.  21,  Office  of  the  Secretary, 
United  States  Department  of  Agriculture)   declares: 

The  term  ' '  original  unbroken  package ' '  as  used  in  this  act  is  the 
original  package,  carton,  case,  can,  box,  barrel,  bottle,  phial,  or  other 
receptacle  put  up  by  the  manufacturer,  to  -which  the  label  is  attached, 
or  which  may  be  suitable  for  the  attachment  of  a  label,  making  one 
complete  package  of  the  food  or  drug  article.  The  original  package 
contemplated  includes  both  the  wholesale  and  the  retail  package. 

This  definition  of  original  unbroken  package  was  inserted  in  the 
regulations  for  the  purpose  of  facilitating  the  administration  of  the 
act.  It  was  intended  to  be,  or  at  all  events  is,  a  guide  to  the  inspectors 
who  purchase  the  samples  throughout  the  United  States,  as  to  the  na- 
ture of  an  original  unbroken  package.  Upon  the  basis  of  this  regula- 
tion the  inspectors  have  collected  a  large  number  of  samples,  but  when 
an  examination  of  some  of  the  cases  has  been  made,  with  prosecutions 
in  view,  it  has  been  found  that  no  action  could  be  taken  because  the 
package  bought  was  not  an  original  package,  though  apparently  so 
upon  a  reasonable  interpretation  of  the  regulation.  Furthermore,  the 
Department  is  advised  that  the  food  commissioners  of  some  of  the 
States,  guided  by  a  literal  interpretation  of  the  regulation,  have  re- 
frained from  enforcement  of  their  laws  upon  all  packages  apparently 
embraced  within  its  terms. 

It  is  believed  that  the  discussion  of  the  question  and  the  cases  cited 
will  prove  helpful  to  those  United  States  attorneys  to  whom  cases  are  re- 
ported for  seizure  in  original  packages  under  section  10  of  the  food  and 
drugs  act. 

To  prevent  the  further  misconception  of  the  scope  of  the  regulation, 
and  for   the  information   of  those  concerned,   it   is  the   purpose   of  this 


PUBLIC    HEALTH    POWERS    AND    LIMITATIONS  285 

decision  to  set  out  the  interpretation  the  Department  has  made  of  it, 
and  the  authorities  therefor. 

Construed  in  the  light  of  judicial  determinations  of  the  question,  the 
terms  "original  unbroken  packages"  (as  set  out  in  the  regulation  and 
as  used  in  sections  2  and  10  of  the  act)  and  "unbroken  packages"  (as 
used  in  section  3  of  the  act)  will  be  restricted  to  such  a  package  con- 
taining the  food  and  drug  product  as  has  been  prepared  for  shipment 
or  transportation  and  shipped  or  transported,  as  an  entirety  or  unit, 
from  a  State,  Territory,  or  the  District  of  Columbia,  or  a  foreign 
country,  into  another  State,  Territory,  or  the  District  of  Columbia,  and 
delivered  to  the  consignee,  remaining  his  property  in  the  identical  form 
and  condition  in  -which  it  was  shipped  or  transported.  After  arrival  in 
a  State  and  delivery  to  the  consignee,  if  any  part  of  the  contents  of 
the  package  be  removed,  or  if  the  package  be  opened  and  commingled 
with  other  property,  or  if  the  package  be  transferred  by  the  consignee, 
it  is  no  longer  an  original  package.  The  retail  package  is  not  an  orig- 
inal package  unless  it  bears  the  characteristics  set  forth  above. 

It  is  not  practicable  to  frame  an  universally  accurate  and  satisfactory 
definition  of  an  "original  package."  No  statute  has  done  so,  and  the 
Department  disclaims  any  attempt  to  do  so  in  its  construction  of  the 
terms.  The  question  must  be  determined  largely  upon  each  case  as  it 
arises,  with  the  guidance  of  the  authoritative  decisions  of  the  courts, 
which  for  the  sake  of  elucidating  and  explaining  the  subject  are  pre- 
sented in  the  following  pages  of  this  decision. 

The  food  and  drugs  act  of  June  30,  1906,  entitled  "An  act  for  pre- 
venting the  manufacture,  sale,  or  transportation  of  adulterated  or  mis- 
branded  or  poisonous  or  deleterious  foods,  drugs,  medicines,  and 
liquors,  and  for  regulating  traffic  therein,  and  for  other  purposes,"  pro- 
vides in  sections  2,  3,  and  10  as  follows: 

Sec.  2.  *  *  *  Any  person  *  *  *  who  shall  receive  in  any 
State  or  Territory  or  the  District  of  Columbia  from  any  other  State 
or  Territory  or  the  District  of  Columbia,  or  foreign  country,  and  hav- 
ing so  received,  shall  deliver,  in  original  unbroken  packages,  for  pay  or 
otherwise,  or  offer  to  deliver  to  any  other  person,  any  such  article  [food 
or  drug]  so  adulterated  or  misbranded  within  the  meaning  of  this  Act, 

*  *  *  shall  be  guilty  of  a  misdemeanor,  and  for  such  offense  be 
fined  not  exceeding  two  hundred  dollars  for  the  first  offense,  and  upon 
conviction  for  each  subsequent  offense  not  exceeding  three  hundred  dol- 
lars or  be  imprisoned  not  exceeding  one  year,  or  both,  in  the  discretion 
of  the  court.     *     *     * 

Sec.  3.  That  the  Secretary  of  the  Treasury,  the  Secretary  of  Agri- 
culture, and  the  Secretary  of  Commerce  and  Labor  shall  make  uniform 
rules  and  regulations  for  carrying  out  the  provisions  of  this  Act,  includ- 
ing the   collection  and  examination   of  specimens  of  foods  and   drugs 

*  *  *  which  shall  be  offered  for  sale  in  unbroken  packages  in  any 
State  other  than  that  in  which  they  shall  have  been  respectively  manu- 
factured or  produced,     *     *     * 


286  PUBLIC   HEALTH   ADMINISTRATION 

See.  10.  That  any  article  of  food,  drug,  or  liquor  that  is  adulterated 
or  misbranded  within  the  meaning  of  this  Act,  and  is  being  trans- 
ported from  one  State,  Territory,  District,  or  insular  possession  to 
another  for  sale,  or,  having  been  transported,  remains  unloaded,  unsold, 
or  in  original  unbroken  packages,  *  *  *  shall  be  liable  to  be  pro- 
ceeded against  in  any  district  court  of  the  United  States  within  the 
district  where  the  same  is  found,  and  seized  for  confiscation  by  a  proc- 
ess of  libel  for  condemnation.     *     *     * 

In  the  enforcement  and  administration  of  these  provisions,  it  is 
necessary  to  determine  what  is  an  "original  unbroken  package"  or  an 
"unbroken  package."  For  the  purpose  of  such  determination  it  is  not 
permissible  to  resort  to  the  common  and  popular  understanding  of  these 
words,  for  the  reason  that  they  have  received  a  special  meaning  and 
import  when  applied  to  the  law  of  interstate  and  foreign  commerce 
through  numerous  judicial  decisions  upon  the  commerce  clause  of  the 
Constitution  and  were  employed  in  the  food  and  drugs  act  in  that  sense. 
It  will  be  seen  hereafter  that  these  words,  when  used  in  their  legal 
signification  in  connection  with  interstate  or  foreign  commerce,  are  of 
restricted  import. 

The  expression  ' '  original  package ' '  was  employed  for  the  first  time 
in  the  case  of  Brown  v.  Maryland,6*  decided  by  the  Supreme  Court  of 
the  United  States  in  1827.  In  the  larger  number  of  cases  subsequent 
thereto  in  which  the  expression  is  used  it  will  be  seen  that  no  modifica- 
tion is  made  in  the  term.  But  in  the  present  act  the  word  ' '  unbroken ' ' 
has  been  added  in  sections  2  and  10,  and  has  been  substituted  for 
"original"  in  section  3,  but  without  qualifying  effect,  as  the  courts 
have  used  the  words  "unbroken"  and  "original"  as  synonymous.  It 
is  held,  therefore,  that  their  combination  or  substitution  effects  no 
change  in  significance.62 

It  is  sought  in  this  decision  to  show  what  is  an  original  package. 
Possibly  it  might  be  logical  to  proceed  to  that  question  at  once,  but  it 
has  been  thought  advisable,  if  not  necessary,  to  consider  first  the  extent 
of  the  power  of  Congress  over  food  and  drug  articles  transported  into 
a  State  from  another  State  or  Territory,  the  District  of  Columbia,  or 
a  foreign  country,  and  there  remaining.  When  this  has  been  considered 
it  will  appear  that  the  control  of  Congress  over  food  and  drugs,  so 
transported,  continues,  after  their  arrival  in  the  State,  so  long  as  they 
are  in  original  packages.  It  will  then  be  shown  what  is  an  original 
package. 

In  Brown  v.  Maryland,  heretofore  referred  to,  it  was  decided  that  the 
law  of  Maryland  imposing  a  license  tax  upon  all  importers  of  foreign 
articles,  dry  goods,  and  merchandise  by  bale  or  package,  and  upon  other 
persons  selling  the  same,  was  unconstitutional  so  far  as  it  undertook  to 

si  25  U.  S.  419.  29 ;  United  States  v.  Fox,  Federal 

sz  Low  et  al.  v.  Austin,  80  U.  S.       Cases  No.  15155. 


PUBLIC    HEALTH    POWERS    AND   LIMITATIONS  287 

require  such  license  tax  from  an  importer  of  goods  from  a  foreign 
country  for  the  sale  thereof  in  the  original  packages  in  which  they  were 
imported;  that  such  a  tax  was  an  interference  with  foreign  commerce, 
which,  under  the  Constitution  of  the  United  States,  was  committed  to 
Congress  to  regulate.  The  conclusion  of  the  court  is  contained  in  the 
following  syllabus: 

An  act  of  a  state  legislature,  requiring  all  importers  of  foreign  goods 
by  the  bale  or  package,  etc.,  and  other  persons  selling  the  same  by 
wholesale,  bale,  or  package,  etc.,  to  take  out  a  license,  for  which  they 
shall  pay  $50.00,  and  in  case  of  neglect  or  refusal  to  take  out  such 
license,  subjecting  them  to  certain  forfeitures  and  penalties,  is  repug- 
nant to  that  provision  of  the  United  States  which  declares  that  "No 
state  shall,  without  consent  of  Congress,  lay  any  impost  or  duty  on 
imports  or  exports,  except  what  may  be  absolutely  necessary  for 
executing  its  inspection  laws ; ' '  and  to  that  which  declares  that  Con- 
gress shall  have  power  ' '  to  regulate  commerce  with  foreign  nations, 
among  the  several  states,  and  with  the  Indian  tribes. ' ' 

The  goods  in  this  case  were  imported  from  a  foreign  country,  but 
the  court  said — "It  may  be  proper  to  add,  that  we  suppose  the  prin- 
ciples laid  down  in  this  case,  to  apply  equally  to  importations  from  a 
sister  state."  This  dictum  was  afterwards  affirmed  as  law  in  the  case 
of  Leisy  v.  Hardin,^  decided  in  1899,  which  overruled  Peirce  v.  New 
Hampshire,64  decided  subsequently  to  Brown  v.  Maryland.  In  Peirce 
v.  New  Hampshire  it  was  held  that  a  barrel  of  gin  shipped  from  Massa- 
chusetts to  New  Hampshire  was  subject  to  the  law  of  New  Hampshire 
prohibiting  the  sale  of  gin,  so  as  to  render  the  seller  amenable  to  the 
law  for  the  sale  of  the  barrel  in  the  exact  condition  in  which  he  re- 
ceived it. 

In  the  case  of  Waring  v.  The  Mayor,65  decided  in  1868,  the  Supreme 
Court  held  that  the  sacks  of  salt  brought  into  Mobile  Bay  from  Eng- 
land and  sold  to  a  merchant  in  Mobile  City  after  arrival  of  the  vessel 
in  the  bay,  twenty-five  miles  from  the  city,  and  transported  by  the  mer- 
chant 's  lighters  to  Mobile,  were  subject  to  the  taxation  by  the  city. 
The  sacks  had  been  sold  by  the  importer  after  their  arrival  in  Ala- 
bama, and  hence  were  merged  in  the  general  mass  of  property  in  the 
state  and  were  no  longer  under  the  shelter  of  the  commerce  clause  of 
the  Constitution  when  taxed  by  the  city  of  Mobile. 

In  1871  the  question  of  taxation  of  imports  from  foreign  countries  in 
the  original  packages  came  again  before  the  Supreme  Court  in  the  case 
of  Low  et  al  v.  Austin,66  and  it  was  there  held — ' '  Goods  imported  from 
a  foreign  country,  upon  which  the  duties  and  charges  at  the  custom 
house  have  been  paid,  are  not  subject  to  state  taxation  whilst  remain- 
ing  in  the  original  cases,  unbroken  and  unsold,   in  the  hands  of  the 

63  135  U.   S.   100.  es  75  XT.   S.   110. 

«*46  U.   S.   504.  «680  U.  S.  29. 


288  PUBLIC    HEALTH   ADMINISTRATION 

importer,  whether  the  tax  be  imposed  upon  the  goods  as  imports,  or 
upon  the  goods  as  part  of  the  general  property  of  the  citizens  of  the 
state,  which  is  subjected  to  an  ad  valorem  tax. ' '  It  will  be  seen  that 
the  Court  here  uses  the  expression,  ' '  original  cases,  unbroken  and 
unsold. ' ' 

In  Cook  v.  Pennsylvania^  decided  in  1878,  the  same  court  held  a 
tax  imposed  by  the  law  of  the  state  upon  every  auctioneer  on  the  amount 
of  his  sales  invalid  when  applied  to  the  sale  of  imported  goods  in 
original  packages.  It  was  held  that — "The  statute  of  Pennsylvania  of 
May  20,  1853,  modified  by  that  of  April  9,  1859,  requiring  every  auc- 
tioneer to  collect  and  pay  into  the  state  treasury  a  tax  on  his  sales,  is, 
when  applied  to  imported  goods  in  the  original  packages,  by  him  sold 
for  the  importer,  in  conflict  with  sections  8  and  10  of  article  1  of  the 
Constitution  of  the  United  States,  and  therefore  void,  as  laying  a  duty 
on  imports  and  being  a  regulation  of  commerce. ' ' 

In  Sehollenberger  v.  Pennsylvania  es  an  act  of  the  State  of  Pennsyl- 
vania prohibiting  the  sale  of  any  oleaginous  substance  or  compound  of 
the  same  designed  to  take  the  place  of  butter  was  held  unconstitutional 
so  far  as  attempted  to  be  enforced  in  the  case  of  a  sale  of  a  40-pound 
tub  of  oleomargarine  imported  from  Ehode  Island  and  sold  as  oleo- 
margarine in  the  identical  condition  in  which  imported.  The  law  of  the 
case  is  contained  in  the  following  syllabus: 

Act  No.  21  of  the  legislature  of  Pennsylvania,  enacted  May  21,  1885, 
enacting  that  "no  person,  firm,  or  corporate'  body  shall  manufacture 
out  of  any  oleaginous  substance,  or  any  compound  of  the  same,  other 
than  that  produced  from  unadulterated  milk  or  cream  from  the  same, 
any  article  designed  to  take  the  place  of  butter  or  cheese  produced  from 
pure  unadulterated  milk,  or  cream  from  the  same,  or  of  any  imitation 
of  adulterated  butter  or  cheese,  nor  shall  sell  nor  offer  for  sale,  or  have 
in  his,  her,  or  their  possession  with  intent  to  sell  the  same  as  an  article 
of  food,"  and  making  such  act  a  misdemeanor,  punishable  by  fine  and 
imprisonment,  is  invalid  to  the  extent  that  it  prohibits  the  introduc- 
tion of  oleomargarine  from  another  state,  and  its  sale  in  the  original 
package. 

The  right  of  a  State  to  prohibit  the  importation  of  a  recognized 
article  of  commerce  was  distinctly  denied  by  the  Supreme  Court  in  the 
case  of  Bowman  v.  Chicago  and  Northwestern  Eailway  Company,69  de- 
cided in  1887.  In  that  case  the  court  declared  invalid  the  statute  of 
Iowa  forbidding  any  railway  company  from  bringing  into  the  State 
intoxicating  liquors  unless  previously  furnished  with  a  certificate  from 
the  county  auditor  that  the  consignee  was  authorized  to  sell  them.  It 
was  held  that — "A  State  can  not,  for  the  purpose  of  protecting  its 
people   against   the   evils   of    intemperance,    enact    laws  which   regulate 

67  97  U.  S.  566.  69  125  U.  S.  465. 

68  171    U.    S.    1. 


PUBLIC    HEALTH    POWERS    AND   LIMITATIONS  289 

commerce  between  its  people  and  those  of  other  States  of  the  Union, 
unless  the  consent  of  Congress,  express  or  implied,  is  first  obtained. 
Section  1553  of  the  Code  of  the  State  of  Iowa,  as  amended  by  C.  143 
of  the  Acts  of  the  20th  General  Assembly  in  1886,  (forbidding  common 
carriers  to  bring  intoxicating  liquors  into  the  State  from  any  other 
State  or  Territory,  without  being  first  furnished  with  a  certificate, 
under  the  seal  of  the  auditor  of  the  county  to  which  it  is  to  be  trans- 
ported or  consigned,  certifying  that  the  consignee  or  person  to  whom 
it  is  to  be  transported  or  delivered  is  authorized  to  sell  intoxicating 
liquors  in  the  county),  although  adopted  without  a  purpose  of  effecting 
interstate  commerce,  but  as  a  part  of  a  general  system  designed  to 
protect  the  health  and  morals  of  the  people  against  the  evils  resulting 
from  the  unrestricted  manufacture  and  sale  of  intoxicating  liquors 
within  the  state,  is  neither  an  inspection  law,  nor  a  quarantine  law,  but 
is  essentially  a  regulation  of  commerce  among  the  states,  affecting  inter- 
state commerce  in  an  essential  and  vital  part,  and,  not  being  sanctioned 
by  the  authority,  express  or  implied,  of  Congress  is  repugnant  to  the 
Constitution  of  the  United  States."  It  will  be  seen  from  the  above 
that  in  this  case  the  question  of  the  right  of  the  importer  to  sell  the 
article  so  imported  in  the  original  package  was  not  decided. 

Two  years  later  the  question  just  stated  was  squarely  presented  to  the 
court  in  the  case  of  Leisy  v.  Hardin,™  where  it  was  held  that  the  statute 
of  Iowa  prohibiting  the  sale  of  intoxicating  liquors,  except  for  certain 
prescribed  purposes,  was,  as  applied  to  the  sale  by  the  importer,  in 
original  packages  or  kegs,  unbroken  and  unopened,  of  liquors  manu- 
factured in  and  brought  from  another  state,  unconstitutional  and  void, 
as  repugnant  to  the  Constitution  of  the  United  States,  granting  to  Con- 
gress the  power  to  regulate  commerce  among  the  states.  The  law  of 
the  case  was  stated  in  the  following  syllabus: 

A  statute  of  a  state,  prohibiting  the  sale  of  any  intoxicating  liquors, 
except  for  pharmaceutical,  medicinal,,  chemical,  or  sacramental  purposes, 
and  under  a  license  from  a  county  court  of  the  state,  is,  as  applied  to 
a  sale  by  the  importer,  and  in  the  original  packages  or  kegs,  unbroken 
and  unopened,  of  such  liquors  manufactured  in  and  brought  from  an- 
other state,  unconstitutional  and  void,  as  repugnant  to  the  clause  of  the 
Constitution,  granting  to  Congress  the  power  to  regulate  commerce  with 
foreign  nations  and  among  the  several  states.  Peirce  v.  New  Hamp- 
shire, 5  How.,  504,  overruled. 

In  Vance  v.  Vandereook  Co.71  the  court  reaffirmed  its  prior  decisions 
upon  the  subject.     The  law  of  interstate  commerce  and  the  relation  of. 
the  original  package  thereto,  is  succinctly  stated  in  the  following  sylla- 
bus to  the  opinion: 

"It  is  settled  by  previous  adjudications  of  this  court — 

(1)  *     *     * 

(2)  That  the  right  to  send  liquors  from  one  state  into  another,  and 

to  135  U.  S.  100.  7i  170  U.  S.  438. 


290  PUBLIC    HEALTH   ADMINISTRATION 

the  act  of  sending  the  same  is  interstate  commerce,  the  regulation 
whereof  has  been  committed  by  the  Constitution  of  the  United  States 
to  Congress,  and  hence,  that  a  state  law  which  denies  such  a  right  or 
substantially  interferes  with  or  hampers  the  same  is  in  conflict  with 
the  Constitution  of  the  United  States. 

(3)  That  the  power  to  ship  merchandise  from  one  state  into  another 
carries  with  it  as  an  incident  the  right  in  the  receiver  of  the  goods  to 
sell  them  in  the  original  packages,  any  state  regulation  to  the  contrary 
notwithstanding;  that  is  to  say,  that  the  goods  received  by  interstate 
commerce  remain  under  the  shelter  of  the  interstate  commerce  clause  of 
the  Constitution  until  by  a  sale  in  the  original  package  they  have  been 
commingled  with  the  general  mass  of  property  in  the  State.     *     *     * 

These  decisions  settled  the  respective  rights  of  the  Federal  and  State 
government  over  goods  moving  in  interstate  and  foreign  commerce.  It 
was  determined  that  a  State  could  not  prevent  the  introduction  into  its 
territory  of  a  recognized  article  of  commerce;  that  it  could  not  prevent 
the  disposition  by  the  importer  in  the  original  package  of  an  article  of 
commerce  brought  into  its  territory;  and  that  Congress  alone  could 
regulate  interstate  commerce  in  such  goods  and  the  disposition  of  them 
in  the  original  package  by  the  importer.  This  is  now  the  settled  law. 
Hence  the  food  and  drugs  act  asserts  the  right  of  the  United  States  to 
prohibit  the  sale  or  disposition  of  adulterated  and  misbranded  food  and 
drugs  imported  into  a  State  and  remaining  in  the  original  package. 

The  next  question  to  be  determined  is,  At  what  time  in  the  existence 
of  imports  does  the  power  of  Congress  to  regulate  their  disposition 
cease?  Stated  otherwise,  When  does  an  original  package  cease  to  be 
such  and  the  regulation  of  its  disposition  pass  beyond  the  jurisdiction 
of  the  Federal  Government? 

This  question  was  answered  in  general  terms  by  the  Supreme  Court 
in  Brown  v.  Maryland,  heretofore  mentioned,  as  follows:  "It  is  suf- 
ficient for  the  present  to  say,  generally,  that  when  the  importer  has  so 
acted  upon  the  thing  imported,  that  it  has  become  incorporated  and 
mixed  up  with  the  mass  of  property  in  the  country,  it  has,  perhaps, 
lost  its  distinctive  character  as  an  import,  and  has  become  subject  to 
the  taxing  power  of  the  State." 

In  the  case  of  Low  et  al  v.  Austin,72  decided  in  1871,  it  was  held 
that — "Goods  imported  do  not  lose  their  character  as  imports,  and 
become  incorporated  into  the  mass  of  property  of  the  State  until  they 
have  passed  from  the  control  of  the  importer  or  been  broken  up  by  him 
from  their  original  cases." 

Again  in  Vance  v.  Vandercook  Co.,  heretofore  referred  to,  it  was  held 
that — "Goods  received  by  interstate  commerce  remain  under  the  shelter 
of  the  interstate  commerce  clause  of  the  Constitution,  until  by  a  sale  in 
the  original  packages  they  have  been  commingled  with  the  general  mass 
of  property  in  the  State." 

72  80  TJ.  S.  29. 


PUBLIC    HEALTH    POWERS    AND    LIMITATIONS  291 

In  the  case  of  Heyman  v.  Southern  Railway  Company,73  recently 
decided,  it  was  said — "In  the  absence  of  Congressional  legislation  goods 
moving  in  interstate  commerce  cease  to  be  such  commerce  only  after  de- 
livery and  sale  in  the  original  package." 

From  these  decisions  it  will  be  seen  that  merchandise  brought  into  a 
State  is  protected  from  State  interference  only  so  long  as  it  remains  in 
the  original  package,  unbroken,  and  in  the  hands  of  the  importer.  If 
the  importer  sells  the  article  in  the  identical  condition  and  form  in 
which  imported,  or  if  he  breaks  the  package,  it  is  no  longer  an  original 
package,  but  has  become  merged  in  the  mass  of  property  in  the  State 
and  subject  to  its  laws. 

Let  these  decisions  be  applied  to  a  hypothetical  case  under  the  food 
and  drugs  act:  A,  a  wholesale  dealer  in  New  York  City,  ships  by  ex- 
press to  B,  in  Hoboken,  N.  J.,  a  box  containing  one  dozen  cans  of 
adulterated  condensed  milk.  B  receives  them  into  his  store  and  shortly 
thereafter  sells  the  box,  just  as  received,  to  C.  B  in  this  example 
would  be  liable  to  the  penalties  prescribed  by  the  act,  because  he  is 
the  importer  and  sold  the  original  package.  But  should  C,  in  due 
course,  sell  this  identical  box  to  D  in  Hoboken,  he  could  not  be  suc- 
cessfully prosecuted  under  the  act  because  he  is  not  the  importer.  When 
the  box  was  sold  by  B  it  lost  the  character  of  an  original  package  and 
became  merged  in  the  property  of  the  State,  and  the  State  only  may 
regulate  its  disposition  by  C. 

Suppose  B,  after  receipt  of  the  box,  opens  it  and  removes  a  can  of 
the  milk,  which  he  sells  to  C.  B  is  exempt  from  prosecution  under  the 
food  and  drugs  act  for  the  sale  of  this  can  or  for  a  subsequent  sale  of 
the  remaining  eleven,  even  though  he  sells  the  eleven  in  the  box.  By  this 
act  of  removing  one  can  he  has  broken  the  original  package  and  in  con- 
sequence destroyed  the  jurisdiction  of  the  United  States  over  it  and 
over  him. 

But  suppose  B  simply  removes  the  top  of  the  box  to  permit  inspec- 
tion, in  no  way  disturbing  the  contents,  replaces  the  top,  and  sells  box 
and  milk  to  C.  Has  B  incurred  the  penalties  prescribed  by  the  food  and 
drugs  act?  Such  a  question  has  not  been  presented  to  the  Supreme 
Court,  but  two  cases  very  similar  have  been  decided  by  the  lower  Fed- 
eral courts. 

The  first  case,  United  States  v.  Fox,?*  decided  in  1869,  was  a  suit 
by  the  United  States  under  the  internal-revenue  act  of  July  13,  1866,75 
to  recover  the  penalties  therein  prescribed  for  the  sale  of  perfumery 
without  affixing  a  proper  stamp  thereon.  A  proviso  in  the  act  pre- 
scribed that  when  imported  perfumery  was  sold  in  the  original  and  un- 
broken package  in  which  the  bottle  or  other  inclosure  was  packed  by  the 
manufacturer  the  person  so  selling  should  not  be  liable  to  the  afore- 
said penalty. 

«203  U.  S.  270.  "14  Stat.   144. 

74  Federal  Cases   No.   15155. 


292  PUBLIC    HEALTH   ADMINISTRATION 

Fox  sold  one  small  wooden  box  containing  twelve  l1,^ -ounce  bottles 
of  hair  oil  and  a  similar  but  larger  box  containing  twelve  bottles  of 
pomade.  He  opened  both  boxes,  so  that  the  purchaser  might  examine 
the  contents.  The  top  of  the  smaller  box  was  put  on  again  before 
delivery  without  change  of  the  contents.  In  the  larger  box,  containing 
pomade,  Fox,  at  the  request  of  the  purchaser,  substituted  three  smaller 
bottles  taken  from  the  shelf  of  the  store,  and  nailed  up  the  box. 

In  respect  to  the  smaller  box  of  oil  the  court  said — "Although  the 
top  of  this  box  was  taken  off  by  the  defendant  Fox,  it  was  only  for  the 
purpose  of  enabling  the  witness  Quivey  to  ascertain  the  kind  and  quality 
of  its  contents,  and  before  the  sale  and  delivery  to  him  it  was  put  on 
again,  with  the  contents  unchanged  in  kind  or  quantity.  Under  these 
circumstances  the  defendant  must  be  considered  as  selling  an  unbroken 
package,  the  contents  of  which  were  not  then  required  to  be  stamped. ' ' 

But  as  to  the  sale  of  the  box  of  pomade,  the  court  said:  "The 
package  was  opened,  and  three  bottles  being  taken  out  of  it,  it  was 
sold  with  only  the  remaining  nine  bottles  in  it.  This  was  a  broken 
package,  and  so  the  court  instructed  the  jury. ' ' 

The  verdict  of  the  jury  in  favor  of  the  defendant,  Fox,  was  set  aside 
on  motion  of  the  United  States,  upon  the  ground  that  the  package  of 
pomade  was  not  an  original  package,  the  court  holding:  "Goods  are 
sold  'in  the  original  and  unbroken  package'  within  the  meaning  of  the 
act  of  July  13,  1866,76  although  the  package  is  opened  for  inspection, 
if  closed  again  before  delivery  without  the  contents  being  changed." 

In  the  other  case,  In  re  McAllister, 7 7  decided  in  1892,  the  facts  were 
these:  Two  men,  emissaries  of  a  butter  dealer  in  Baltimore,  went  to 
the  store  of  McAllister,  a  dealer  in  oleomargarine,  and  sought  to  buy 
butter.  McAllister  stated  that  he  had  none,  but  could  supply  oleo- 
margarine. They  requested  him  to  remove  the  lid  from  the  tub  of 
oleomargarine  that  they  might  look 'at  it.  He  did  so,  stating  that  he 
could  not  sell  less  than  10  pounds,  as  it  reached  him  in  the  tub  from' 
Chicago.  They  purchased  the  tub  and  forthwith  informed  on  him.  He 
was  duly  tried  in  the  State  court  and  convicted.  The  State  Court  of 
Appeals  affirmed  the  conviction,  and  McAllister  applied  to  the  Circuit 
Court  of  the  United  States  for  a  writ  of  habeas  corpus,  on  the  ground 
that  the  sale  of  the  tub  of  oleomargarine  was  a  sale  of  an  original 
package  and  beyond  the  power  of  the  State  to  prohibit,  which  it  sought 
to  do  in  an  act  of  the  legislature.  The  court  granted  the  writ  and  an- 
nounced the  proposition  of  law  involved,  in  the  following  syllabus  to 
the  case:  "Removing  the  lid  of  an  original  package  of  oleomargarine, 
so  that  a  prospective  buyer  may  examine  its  contents,  is  not  such  a 
breaking  of  the  package  as  will  destroy  its  original  character."  In 
reaching  the  above  conclusion  the  court  said :  "  It  is  argued  that  the 
taking  the  lid  from  the  tub  containing  this  oleomargarine  was  a  breaking 

76  14  Stat.   144.  7751  Fed.  282. 


PUBLIC    HEALTH    POWERS    AND    LIMITATIONS  293 

of  the  package  so  as  to  destroy  its  original  character.  This  in  no  sense 
did  it  do.  The  goods  had  in  no  way  become  commingled  with  his  prop- 
erty or  the  general  property  of  the  State.78  Anyone  calling  for  oleo- 
margarine with  an  honest  purpose  would  have  purchased  this  package 
as  an  original  one,  even  if  he  knew  it  had  had  its  lid  lifted  off  once  to 
see  whether  or  not  it  held  another  substance  than  it  purported  to  hold. 
The  laws  of  the  United  States  recognize  oleomargarine  as  a  merchantable 
article.  Being  such,  while  a  State  may  perhaps  regulate  its  sale,  it  can 
not  prohibit  its  importation.  The  statute  in  question  does  this,  and  is 
unconstitutional,  and  in  this  respect  void.  The  petitioner  is  discharged. ' ' 

Upon  the  authority  of  these  two  cases,  and  following  their  reasoning, 
it  must  be  concluded  that  B,  in  the  last  example,  is  amenable  to  the 
penalties  prescribed  by  the  food  and  drugs  act.  The  first  of  these  cases 
has  another  and  important  significance  in  connection  with  this  decision, 
namely,  the  use  of  the  word  ' '  unbroken ' '  as  synonymous  with  ' '  orig- 
inal,"  thus  substantiating  the  statement  in  the  preliminary  part  of  this 
discussion  that  the  courts  used  the  words  interchangeably. 

An  example  may  be  profitably  introduced  at  this  point  to  show  how 
far  goods  moving  in  interstate  commerce  may  be  subjected  to  seizure 
under  section  10  of  the  act.  A,  a  wholesale  dealer  in  New  York  City, 
ships  50  barrels  of  flour  to  B  in  St.  Louis,  Mo.  This  flour  may  be 
seized,  if  adulterated  or  misbranded,  at  New  York  City  after  delivery 
to  the  carrier,  or  at  any  point  along  the  route,  and  may  likewise  be 
seized  in  St.  Louis  in  the  hands  of  the  carrier  before  delivery  to  B, 
regardless  of  the  question  of  whether  or  not  it  still  remains  in  original 
packages,  which,  in  the  illustration,  are  the  barrels.  After  delivery  of 
the  flour  to  B  it  may  still  be  seized,  in  his  hands,  if  it  remains  in  the 
barrels  (the  original  packages)  as  shipped.  But  if  B,  after  delivery  to 
him,  transfers  the  flour  to  5-pound  sacks,  or  otherwise  breaks  the  bar- 
rels and  commingles  the  flour  with  his  stock  of  goods,  the  original  pack- 
ages have  been  destroyed,  and  it  is  no  longer  subject  to  seizure  by  the 
United  States;  nor  are  the  barrels  liable  to  seizure  by  the  United 
States  after  B  disposes  of  them  to  C  in  Missouri,  even  though  no 
alteration  is  made  in  their  condition. 

Having  now  briefly  reviewed  the  decisions  of  the  Federal  courts  as- 
serting the  power  of  Congress  to  regulate  the  disposition  of  goods 
imported  into  a  State  from  elsewhere,  it  is  necessary  to  advert  to  the 
original  question  of  what  is  an  original  package. 

The  first  distinct  definition  of  an  original  package  by  the  Supreme 
Court  was  announced  in  the  case  of  Austin  v.  Tennessee,^  where  it  was 
held  that :  ' '  Original  packages  are  such  as  are  used  in  bona  fide  trans- 
actions carried  on  between  the  manufacturer  and  wholesale  dealers  resid- 
ing in  different  States. ' ' 

This  is  hardly  an  accurate  test  to  determine  what  is  an  original  pack- 

'  78  Low  v.   Austin,   13   Wall.   29.  79179  u.  S.  343. 


294  PUBLIC    HEALTH   ADMINISTRATION 

age  in  every  ease,  and  certainly  can  not  restrict  the  provisions  of  sections 
2  and  10  of  the  food  and  drugs  act  of  1906  to  transactions  wholly  be- 
tween the  manufacturer  and  the  wholesale  dealer.  If  so,  the  plain 
intent  of  the  act  could  be  easily  defeated,  in  the  case  of  sales  by  im- 
porters in  original  packages.  An  illustration  will  forcibly  demonstrate 
the  incompleteness  of  the  definition  when  applied  to  the  food  and  drugs 
act. 

It  will  scarcely  be  gainsaid  that  a  can  of  tomatoes  shipped  by  a  per- 
son in  no  way  connected  with  the  manufacture  or  preparation  thereof, 
from  one  State  to  a  person  in  another  State  in  no  way  engaged  in  the 
general  sale  of  such  commodities,  is  a  shipment  and  receipt  of  an  orig- 
inal package,  and  if  the  recipient  disposes  of  it  in  any  way,  in  the  form 
in  which  it  comes  to  him,  he  has  violated  the  food  and  drugs  act. 

The  above  language  of  the  court  is  materially  modified  by  its  ex- 
pressions in  Schollenberger  v.  Pennsylvania,  heretofore  referred  to, 
where  it  was  said:  "The  right  of  the  importer  to  sell  can  not  depend 
upon  whether  the  original  package  is  suitable  for  retail  trade  or  not. 
His  right  to  sell  is  the  same  whether  to  consumers  or  to  wholesale  deal- 
ers in  the  article,  provided  he'  sells  them  in  original  packages."  A 
much  more  satisfactory  and  exact  definition  is  contained  in  the  decision 
in  Guckenheimer  v.  Sellers,80  where  it  was  held  that:  "An  original 
package  within  the  meaning  of  the  law  of  interstate  commerce,  is  the 
package  delivered  by  the  importer  to  the  carrier  at  the  initial  point  of 
shipment,  in  the  exact  condition  in  which  it  was  shipped." 

And  when  this  is  followed  by  the  expression  of  the  court  in  the  case 
In  re  Beine,81  where  it  was  said:  "It  is  not  perceived  why,  in  the 
absence  of  a  regulation  by  Congress  to  the  contrary,  the  importer  may 
not  determine  for  himself  the  form  and  size  of  the  packages  he  puts  up 
for  export."  It  seems  there  could  hardly  arise  a  question  in  the  en- 
forcement of  the  provisions  of  the  food  and  drugs  act  under  consider- 
ation that  could  not  be  tested  by  the  foregoing  definitions. 

Concrete  examples  of  what  have  been  held  to  be  original  packages 
are  found  in  several  of  the  adjudicated  cases: 

Peirce  v.  New  Hampshire:  g2     A  barrel  of  gin. 

Bowman  v.  Chicago  and  Northwestern  Railway  Company:  83  A  bar- 
rel of  beer. 

Leisy  v.  Hardin :  8*  One-fourth  barrel  of  beer ;  one-eighth  barrel  of 
beer;  and  a  sealed  case  of  beer. 

Schollenberger  v.  Pennsylvania  ;ss  10  and  40  pound  tubs  of  oleo- 
margarine. 

Rhodes  v.  Iowa:8s     A  box  of  liquors. 

May  v.  New  Orleans:87  Box,  case,  or  bale  in  which  were  inclosed 
separate  bundles  and  packages  of  dry  goods. 

8o81  Fed.   997.  84  135  U.  S.   100. 

si  42   Fed.   545.  85  171  U.  S.  1. 

82  46  U.  S.  504.  80  170  U.   S.  412. 

83  125  U.   S.  465.  87  178  U.   S.  496. 


PUBLIC    HEALTH    POWERS   AND   LIMITATIONS  295 

Austin  v.  Tennessee:88  A  large  open  basket  in  which  were  shipped 
numerous  pasteboard  boxes,  each  containing  ten  cigarettes. 

Plumley  v.  Massachusetts:89     A  10-pound  package  of  oleomargarine. 

In  re  Beine:90  A  single  bottle  of  beer  or  whisky,  packed,  sealed,  and 
mailed  up  in  a  pasteboard  or  wooden  box. 

In  re  Harmon:9*  An  open  pine  box  containing  several  pint  and 
quart  bottles  of  whisky,  each  done  up  in  a  paper  wrapper  or  box  and 
sealed. 

In  re  McAllister :92  A  10-pound  tub  of  oleomargarine,  even  though 
its  lid  had  been  removed  to  allow  inspection  by  the  purchaser. 

United  States  v.  Fox:9s  A  small  wooden  box  containing  twelve  \xfa- 
ounce  bottles  of  oil,  even  though  its  top  had  been  removed  by  the  seller 
to  permit  inspection  by  the  purchaser. 

Guekenheimer  v.  Sellers:94  A  single  bottle  of  beer,  if  shipped  singly; 
several  bottles  of  beer  fastened  together  and  so  shipped  constitute  one 
package;  if  several  bottles  be  inclosed  in  one  box,  barrel,  crate,  or  other 
receptacle,  the  box,  barrel,  crate,  or  other  receptacle  is  the  original 
package. 

In  May  v.  New  Orleans,95  decided  in  1899,  the  Supreme  Court  held 
that  where  dry  goods  were  imported  into  New  Orleans  from  a  foreign 
country  in  boxes,  bales,  and  cases,  each  containing  separate  bundles  of 
merchandise,  separately  marked  and  packed,  which  were  so  exposed  for 
sale  or  taken  out  of  the  boxes,  bales,  and  cases  and  sold,  the  boxes, 
bales,  and  cases  were  the  original  packages,  and  when  the  separate 
bundles  were  removed  or  exposed  for  sale  the  goods  lost  their  distinc- 
tive character  as  imports  and  each  parcel  or  bundle  became  a  part  of 
the  general  mass  of  property  in  the  State  and  subject  to  local  taxation. 
The  syllabus  of  the  ease  states  the  law  as  follows:  "May  &  Co.,  mer- 
chants at  New  Orleans,  were  engaged  in  the  business  of  importing  goods 
from  abroad,  and  selling  them.  In  each  box  or  case  in  which  they  were 
brought  into  this  country,  there  would  be  many  packages,  each  of 
which  was  separately  marked  and  wrapped.  The  importer  sold  each 
package  separately.  The  city  of  New  Orleans  taxed  the  goods  after 
they  reached  the  hands  of  the  importer  (the  duties  having  been  paid) 
and  were  ready  for  sale.    Held: 

(1)  That  the  box,  case,  or  bale  in  which  the  separate  parcels  or 
bundles  were  placed  by  the  foreign  seller,  manufacturer  or  packer  was 
to  be  regarded  as  the  original  package,  and  when  it  reached  its  destina- 
tion for  trade  or  sale  and  was  opened  for  the  purpose  of  using  or 
exposing  to  sale  the  separate  parcels  or  bundles  the  goods  lost   their 

88  179  U.   S.  343.  S2  5i  Fed.  282. 

89  155  U.  S.  461.  93  Federal  Cases  No.  15155. 
9°42  Fed.  545.  9*  81  Fed.  997. 

9i43  Fed.  372.  ss  178  U.  S.  496. 


296  PUBLIC  HEALTH  ADMINISTRATION 

distinctive  character  as  imports  and  each  parcel  or  bundle  became  a 
part  of  the  general  mass  of  property  in  the  State  and  subject  to  local 
taxation. ' ' 

(2)     *     *     * 

The  case  In  re  Harmon  as  presented  the  following  facts:  Harmon 
was  agent  in  Sardis,  Miss.,  for  Jordan,  a  liquor  dealer  in  Memphis, 
Tenn.  Panola  County,  in  which  Sardis  is  situated,  was  a  "prohibition" 
county.  Jordan  shipped  from  Memphis  to  Harmon  at  Sardis  a  num- 
ber of  boxes  containing  bottles  or  flasks  of  whisky,  some  containing  a 
pint,  others  a  quart.  These  bottles  or  flasks  had  each  a  paper  wrapper 
or  box  placed  around  it  and  sealed.  These  boxes  so  inclosed  were  by 
Jordan  placed  in  ordinary  pine  boxes,  but  without  caver,  closely  packed 
together.  They  were  so  shipped,  and  there  was  an  understanding  be- 
tween Harmon  and  Jordan  that  the  wooden  boxes  were  to  be  returned 
to  Jordan  when  all  the  bottles  or  flasks  of  whisky  had  been  sold.  (The 
fact  that  these  boxes  were  comparatively  valueless  and  not  worth  the 
return  express  charges  exposed  the  agreement  to  return  them  to  the 
suspicion  of  fraud).  Harmon  received  the  liquors  in  this  condition, 
and  when  a  sale  was  effected  would  take  each  bottle  out  of  the  box  and 
deliver  to  purchaser.  He  was  convicted  in  the  State  court  for  selling 
liquor.  Being  imprisoned  upon  the  judgment,  he  applied  to  the  Circuit 
Court  of  the  United  States  for  a  writ  of  habeas  corpus,  alleging  the 
restraint  of  his  liberty  in  violation  of  the  Constitution  of  the  United 
States,  supporting  this  contention  by  the  allegation  that  the  whisky  was 
sold  in  original  packages  and  therefore  beyond  the  jurisdiction  of  the 
State  to  prevent.  The  decision  was  as  follows:  "Where  bottles  of 
whisky,  each  sealed  up  in  a  paper  wrapper  and  closely  packed  together 
in  uncovered  wooden  boxes  furnished  by  an  express  company,  and 
marked,  'To  be  returned,'  are  shipped  from  one  State  to  another,  the 
boxes,  and  not  the  bottles,  constitute  the  'original  packages'  within 
the  meaning  of  decisions  of  the  Supreme  Court  upon  the  interstate  com- 
merce provision  of  the  National  Constitution."  The  case  of  Gucken- 
heimer  et  al  v.  Sellers  et  al  97  contains  the  following  definition  of  an 
original  package :  ' '  An  original  package,  within  the  meaning  of  the  law 
of  interstate  commerce,  is  the  package  delivered  by  the  importer  to  the 
carrier  at  the  initial  point  of  shipment,  in  the  exact  condition  in  which 
it  was  shipped.  In  the  case  of  liquors  in  bottles,  if  the  bottles  are 
shipped  singly,  each  is  an  original  package,  but  if  a  number  are  fastened 
together,  and  marked,  or  are  packed  in  a  box,  barrel,  crate,  or  other 
receptacle,  such  bundle,  box,  barrel,  crate,  or  receptacle  constitutes  the 
original  package." 

In  the  Austin  ease  ss  there  was  presented  the  question  whether  or  not 
a  pasteboard  box  containing  10  cigarettes,  over  one  end  of  which  was 

ae  43  Fed.  372.  98  179  U.  S.  343. 

97  81  Fed.  997. 


PUBLIC    HEALTH    POWERS   AND   LIMITATIONS  297 

securely  pasted  the  United  States  revenue  stamp,  was  an  original  pack- 
age under  the  circumstances  of  that  case  and  within  the  prior  decisions 
of  the  court.     The  facts  were: 

The  legislature  of  Tennessee  in  1897  passed  an  act  to  prohibit  the 
sale  of  any  cigarettes  or  introduction  of  them  into  the  State  for  that 
purpose.  Austin  was  a  merchant  in  the  State  and  in  the  course  of  his 
business  purchased  from  a  factory  in  North  Carolina  a  number  of  pack- 
ages of  cigarettes  put  up  in  small  boxes,  containing  10  cigarettes  each, 
there  being  securely  pasted  over  the  end  of  each  box  a  United  States 
revenue  stamp.  When  the  order  was  received  by  the  North  Carolina 
factory,  the  packages  above  described  were  placed  in  a  pile  on  the  floor 
of  their  warehouse  and  the  agent  of  the  Southern  Express  Company 
notified  to  come  for  them.  An  employee  of  the  company  brought  with 
him  a  large  basket  without  cover,  belonging  to  his  company,  in  which 
he  gathered  the  individual  boxes  and  took  them  to  the  station  for  car- 
riage to  Austin,  in  Tennessee.  When  the  basket  containing  the  pack- 
ages reached  its  destination  in  Tennessee,  the  agent  of  the  company 
there  took  it  to  Austin 's  store  and  emptied  the  packages  on  the  counter 
of  the  store  and  took  the  basket  away  with  him.  Austin  immediately 
exposed  the  cigarettes  for  sale  and  sold  one  package  to  a  customer.  He 
was  indicted,  tried,  and  convicted  for  this  sale.  His  defense  was  that 
the  package  was  an  original  package,  and  that  the  law  of  the  State  so 
far  as  applicable  to  this  transaction  was  unconstitutional  as  an  inter- 
ference with  interstate  commerce.  Upon  appeal  to  the  Supreme  Court 
of  the  State  the  conviction  was  affirmed.  He  then  sued  out  a  writ  of 
error  to  the  Supreme  Court  of  the  United  States.  A  majority  of  the 
Justices  held  that  the  original  package  in  this  case  was  the  basket  in 
which  the  packages  were  transported,  and  not  the  package  sold.  They 
therefore  affirmed  the  judgment  of  the  State  court. 

The  results  of  the  conclusions  reached  are  expressed  in  the  syllabus, 
as  follows:  "Original  packages  are  such  as  are  used  in  bona  fide 
transactions  carried  on  between  the  manufacturer  and  wholesale  dealers 
residing  in  different  States.  Where  the  size  of  the  package  is  such  as 
to  indicate  that  it  was  prepared  for  the  purpose  of  evading  the  law  of 
the  State  to  which  it  is  sent,  it  will  not  be  protected  as  an  original 
package  against  the  police  laws  of  that  State.  Where  cigarettes  were 
imported  in  paper  packages  of  three  inches  in  length  and  one  and  one- 
half  in  width,  containing  ten  cigarettes,  unboxed  but  thrown  loosely  into 
baskets:  Held,  that  such  paper  parcels  were  not  original  packages 
within  the  meaning  of  the  law,  and  that  such  importations  were  evidently 
made  for  the  purpose  of  evading  the  law  of  the  State  prohibiting  the 
sale  of  cigarettes." 

The  court  rested  its  decision  in  this  case  more  upon  the  palpable 
fraud  upon  the  laws  of  Tennessee  than  upon  any  attempt  to  analyze 
the  definition  of  an  original  package.     So  in  Cook  v.  Marshall  County,*8 

99  196  U.  S.  261. 


298  PUBLIC   HEALTH   ADMINISTRATION 

Iowa,  the  boxes  of  cigarettes  in  the  same  form  as  in  the  Austin  case 
were  shoveled  into  the  car  in  Missouri  and  delivered  to  Cook  in  Iowa  in 
that  condition.  They  were  not  inclosed  in  any  receptacle,  but  shipped  in 
bulk.  The  State  imposed  a  tax  of  $300  on  the  business  of  selling  cigar- 
ettes. Cook  resisted  the  payment  upon  the  ground  that  he  sold  only  in 
original  packages  and  was  therefore  protected  by  the  interstate  com- 
merce clause  of  the  Constitution.  Having  lost  in  the  State  courts,  he 
prosecuted  a  writ  of  error  to  the  Supreme  Court  of  the  United  States, 
where  it  was  held  that  Cook  was  not  exempt  from  the  tax;  that  the 
manner  of  dealing  disclosed  by  the  facts  in  the  case  was  a  gross  fraud 
upon  the  laws  of  Iowa,  and  the  court  would  not  lend  its  aid  to  such  a 
proceeding.  The  question  of  what  was  an  original  package  in  the  case 
was  a  matter  of  minor  importance,  though  the  court  said  the  term 
original  package  did  not  include  packages  which  could  not  be  commer- 
cially transported  from  one  State  to  another.  The  syllabus  contains  the 
law,  as  follows: 

The  term  original  package  is  not  denned  by  statute,  and  while  it 
may  be  impossible  to  judicially  determine  its  size  or  shape,  under  the 
principle  upon  which  its  exemption  while  an  article  of  interstate  com- 
merce is  founded,  the  term  does  not  include  packages  which  can  not  be 
commercially  transported  from  one  State  to  another. 

While  a  perfectly  lawful  act  may  not  be  impugned  by  the  fact  that 
the  person  doing  it  was  impelled  thereto  by  a  bad  motive,  where  the  law- 
fulness or  unlawfulness  of  the  act  is  made  an  issue,  the  intent  of  the 
actor  may  be  material  in  characterizing  the  transaction,  and  where  a 
party,  in,  transporting  goods  from  one  State  to  another,  selects  an  un- 
usual method  for  the  express  purpose  of  evading  or  defying  the  police 
laws  of  the  latter  State  the  commerce  clause  of  the  Federal  Constitu- 
tion can  not  he  invoked  as  a  cover  for  fraudulent  dealing. 

This  court  adheres  to  its  decision  in  Austin  v.  Tennessee,1-00  that 
small  pasteboard  boxes  each  containing  ten  cigarettes,  and  sealed  and 
stamped  with  the  revenue  stamp,  whether  shipped  in  a  basket  or  loosely, 
not  boxed,  baled,  or  attached  together,  and  not  separately  or  otherwise 
addressed  but  for  which  the  express  company  has  given  a  receipt  and 
agreement  to  deliver  them  to  a  person  named  therein  in  another  State, 
are  not  original  packages  and  are  not  protected  under  the  commerce 
clause  of  the  Federal  Constitution  from  regulation  by  the  police  power 
of  the  State. 

From  a  consideration  of  all  the  decisions  and  upon  the  basis  of  com- 
mon understanding  of  the  words,  it  seems  that  an  original  package 
within  the  meaning  of  the  food  and  drugs  act  is  the  unit,  complete  in 
itself,  delivered  by  the  shipper  to  the  carrier,  addressed  to  the  con- 
signee, and  received  by  him  in  the  identical  condition  in  which  it  was 
sent,  without  separation  of  the  contents  in  any  manner.     This  unit  may 

100179  U.  S.  343. 


PUBLIC    HEALTH    POWERS   AND   LIMITATIONS  299 

be  a  hogshead  containing  500  bottles  of  wine,  or  a  single  can  of 
tomatoes,  or  it  is  a  small  ounce  phial  of  some  drug  if  shipped  to  the 
consignee  in  that  form;  and  if  the  consignee  sells  or  gives  away  any 
one  of  the  three  in  the  unaltered  condition  in  which  he  received  it,  if 
contents  be  adultered  or  misbranded,  he  has  violated  the  act. 

This  presentation  of  the  decisions  of  the  courts  would  not  be  com- 
plete, and  certainly  not  satisfactory,  if  some  reference  were  not  made 
to  three  very  important  decisions,  two  of  the  Supreme  Court  of  the 
United  States :  Plumley  v.  Massachusetts  i  and  Crossman  v.  Lurman  - 
and  one  of  the  Circuit  Court  of  Appeals  of  the  Sixth  Circuit:  Arbuckle 
Bros.  v.  Blackburn,  Dairy  and  Food  Commission  of  Ohio.3  But  they 
are  referred  to  here  simply  to  show  that,  so  far  as  the  food  and  drugs 
act  of  June  30,  1906,  is  concerned,  they  are  in  a  sense  obsolete.  These 
decisions  were  rendered  prior  to  the  passage  of  the  aforesaid  act,  and 
asserted  the  right  of  the  States  to  prohibit  the  sale  and  traffic  in  adul- 
terated and  misbranded  foods  and  drugs  even  in  original  packages.  They 
were  rendered  in  the  absence  of  Congressional  action  covering  the  entire 
subject-matter  of  interstate  commerce  in  foods  and  drugs.  Since  then 
Congress  has  assumed  its  full  authority  over  the  subject  by  the  passage 
of  the  act  of  June  30,  1906. 

The  decisions  proceeded  upon  the  well-recognized  principle  that  in 
the  absence  of  complete  Federal  regulation  of  interstate  and  foreign 
commerce  effect  will  be  given  to  the  legitimate  exercise  of  the  police 
powers  of  the  States,  even  though  incidentally  affecting  that  commerce. 
There  can  scarcely  be  a  doubt  that  since  the  enactment  of  the  food  and 
drugs  act  all  power  of  the  States  over  interstate  commerce  in  foods  and 
drugs,  including  the  regulation  of  importations  and  sales  in  original 
packages,  has  been  abrogated,  and  the  subject  is  entirely  and  exclus- 
ively under  the  control  of  the  Federal  Government.  That  such  is  the 
state  of  the  law  is  clearly  and  succinctly  shown  by  the  following  quota- 
tion from  the  opinion  of  Justice  Harlan  in  the  case  of  Eeid  v.  Colorado, 
187  U.  S.,  at  page  146: 

It  is  quite  true,  as  urged  on  behalf  of  the  defendant,  that  the  trans- 
portation of  live  stock  from  State  to  State  is  a  branch  of  interstate 
commerce  and  that  any  specified  rule  or  regulation  in  respect  of  such 
transportation,  which  Congress  may  lawfully  prescribe  or  authorize  and 
which  may  properly  be  deemed  a  regulation  of  such  commerce,  is  para- 
mount throughout  the  Union.  So  that  when  the  entire  subject  of  the 
transportation  of  live  stock  from  one  State  to  another  is  taken  under 
direct  national  supervision  and  a  system  devised  by  which  diseased 
stock  may  be  excluded  from  interstate  commerce,  all  local  or  State 
regulations  in  respect  of  such  matters  and  covering  the  same  ground 
will  cease  to  have  any  force,  whether  formally  abrogated  or  not;   and 

i  155  U.  S.  461.  3  113   Fed.  616. 

2 192  U.  S.  189. 


300  PUBLIC    HEALTH   ADMINISTRATION 

such  rules  and  regulations  as  Congress  may  lawfully  prescribe  or  author- 
ize will  alone  control.  *  *  *  The  power  which  the  States  might 
thus  exercise  may  in  this  way  be  suspended  until  national  control  is 
abandoned  and  the  subject  be  thereby  left  under  the  police  power  of 
the  States. 

This  case  involved  the  validity  of  a  certain  act  of  the  State  of  Colo- 
rado designed  to  prevent  the  introduction  of  infectious  and  contagious 
diseases  among  the  cattle  of  the  State.  The  defendant  contended  that 
the  act  was  void  as  an  interference  with  interstate  commerce,  and 
because  the  subject-matter  had  already  been  covered  by  an  act  of  Con- 
gress. The  Supreme  Court  sustained  the  validity  of  the  act  of  Colorado, 
because  a  legitimate  exercise  of  the  police  power  in  the  absence  of  com- 
plete regulation  by  Congress  covering  the  matter.  The  act  of  Congress 
in  force  at  that  time  did  not  attempt  a  full  and  complete  regulation  of 
interstate  transporation  of  animals. 

The  principal  that  the  State  police  laws  affecting  interstate  and 
foreign  commerce  must  yield  to  the  regulation  of  Congress  when  it 
shall  assume  jurisdiction  is  well  and  tersely  stated  by  Freund  in  his 
work  on  Police  Power,  at  page  82,  as  follows:  Sec.  85.  The  State  may 
enact  measures  for  the  protection  of  safety,  order,  and  morals,  though 
affecting  foreign  and  interstate  commerce,  subject  to  the  following 
principles : 

1.  Every  measure  of  State  legislation,  however  legitimate  in  itself, 
yields  to  positive  regulation  of  interstate  or  foreign  commerce  by  act 
of  Congress,  inconsistent  with  such  measure  or  intended  fully  to  cover 
the  same  matter.     (January  31,  1908.) 

It  must  be  remembered  that  the  commercial  expres- 
sion "original  package"  is  not  synonymous  always 
with  the  legal  definition.  A  drug  firm  in  Baltimore 
may  put  up  a  mixture  in  certain  sizes  of  bottles,  each 
properly  labelled,  and  sealed,  and  ready  for  sale  by 
the  retailer.  The  manufacturers  pack  these  bottles  in 
boxes,  each  containing  a  dozen  or  two  dozen.  Legally 
this  box  is  the  original  package.  Commercially  each 
bottle  is  an  original  package.  But  the  individual 
bottle  may  legally  become  an  original  package  when, 
in  the  course  of  the  retail  trade,  it  shall  be  shipped 
from  one  state  to  another.  It  must  be  remembered,  as 
will  be  shown  in  Chapter  XVII,  that  when  this  bottle  is 
so  shipped  the  guaranty  printed  upon  the  bottle  will 


PUBLIC    HEALTH    POWERS   AND    LIMITATIONS  301 

aot  necessarily  protect  the  retailer,  if  it  shall  appear 
that  the  bottle  be  mislabelled  (§464). 

§  240.  Federal  control  over  manufacture.  In  United 
States  v.  Boyer,4  which  concerned  an  indictment  for 
attempting  to  bribe  an  inspector  to  consent  that  dis- 
eased carcasses  might  be  made  into  food  products,  the 
court  held  that  slaughtering  and  packing  of  cattle 
intended  for  transportation  to  other  states  and  terri- 
tories was  not  interstate  commerce,  or  subject  to  reg- 
ulation by  Congress;  that  inspection  of  meat  during 
the  process  of  packing  belongs  to  the  states;  that  the 
inspector  was  not  performing  a  duty  as  a  federal  offi- 
cer, and  that  therefore  the  attempt  to  bribe  was  not  a 
federal  offense.  Therefore  Prentice  and  Egan5  con- 
clude that  federal  laws  relative  to  the  inspection  of 
meat  during  the  process  of  packing,  or  other  federal 
control  over  manufacture  is  beyond  the  constitutional 
authority  of  the  nation.  It  certainly  is  true  that  inter- 
state commerce  cannot  strictly  begin  until  after  the 
process  of  manufacture  has  been  completed.  It  is  also 
true  that  there  is  hardly  any  article  of  manufacture 
which  is  not,  to  a  greater  or  less  extent,  a  subject  of 
interstate  commerce.  To  grant  full  federal  control 
over  such  manufacture  would  imply  the  authority  to 
control  nearly  all  of  the  operations  of  the  citizens.  As 
was  remarked  in  Kidd  v.  Pearson,6  "Does  not  the 
wheat  grower  of  the  Northwest,  and  the  cotton  planter 
of  the  South,  plant,  cultivate,  and  harvest  his  crop 
with  an  eye  on  the  prices  at  Liverpool,  New  York,  and 
Chicago?  The  power  being  vested  in  Congress  and 
denied  to  the  states,  it  would  follow  as  an  inevitable 

*  85  Fed.  Rep.  425.  «  128  U.  S.  1. 

5  Commerce  Clause  of  the  Fed- 
eral Constitution,  34  and  339. 


302  PUBLIC    HEALTH   ADMINISTRATION 

result  that  the  duty  would  devolve  upon  Congress  to 
regulate  all  of  these  delicate,  multiform,  and  vital 
interests — interests  which  in  their  nature  are  and  must 
be  local  in  all  the  details  of  their  successful  manage- 
ment." It  seems  to  us  that  the  fault  in  this  line  of 
argument  is  in  the  failure  to  clearly  distinguish 
between  interstate  and  local  commerce.  It  is  clearly 
within  the  province  of  the  federal  government  to  pro- 
hibit interstate  commerce  in  diseased  meat.  That  is 
admitted.  It  is  also  admitted  that  the  detection  of 
evidence  of  disease  in  meat  may  be  much  more  thor- 
oughly and  satisfactorily  made  at  the  time  of  slaughter- 
ing. It  seems,  therefore,  fully  within  the  province  of 
the  federal  government  to  require  evidence  of  such 
inspection  upon  all  carcasses  shipped  in  interstate,  or 
foreign  commerce.  An  officer  inspecting  goods  during 
interstate  or  foreign  transportation  is  clearly  within 
the  authority  of  the  federal  government.  It  seems 
that  an  officer  who  inspects  goods  for  admission  to 
such  traffic  would  equally  be  within  the  constitutional 
provision  giving  to  Congress  full  authority  over  such 
commerce.  "With  due  deference  to  the  learned  judge 
in  the  Boyer  case,  it  seems  to  us  that  such  an  inspector 
is  performing  the  duties  of  a  federal  officer.  He  may 
not,  perhaps,  under  federal  regulations,  absolutely 
refuse  to  permit  such  diseased  meat  to  be  placed  among 
articles  of  food,  but  it  would  seem  to  be  his  duty  to 
insure  its  exclusion  from  interstate  or  foreign 
commerce. 

It  is  of  the  utmost  importance  that  such  articles  of 
commerce  as  antitoxic  sera  be  absolutely  reliable. 
Much  harm  might  be  done  before  a  fault  be  detected, 
unless  the  process  of  manufacture  be  carefully  super- 


PUBLIC    HEALTH    POWERS    AND    LIMITATIONS  303 

vised.  The  bacillus  of  tetanus  has  been  spread  in 
diphtheria  antitoxin,  and  the  germs  of  the  foot  and 
mouth  disease  were  scattered  through  the  country  in 
the  virus  of  vaccina.  For  the  government  to  rely  upon 
examinations  of  samples  sent  out  alone,  would  be  to 
delay  detection  of  danger  until  after  the  harm  has 
been  done.  The  inspection  of  the  animals  before  the 
virus  is  collected,  and  the  supervision  of  the  care  with 
which  the  manufacture  is  conducted,  are  absolutely 
necessary  for  federal  control  over  this  line  of  com- 
merce. It  is  therefore  required  that  such  manu- 
facturers, engaged  in  interstate  commerce,  shall  take 
out  government  licenses,  and  such  general  supervision 
is  required  in  the  taking  of  a  license.  This  does  not 
interfere  with  manufacture  for  domestic  consumption. 
Neither  need  it  interfere  with  state  regulation  of  manu- 
facture. 

Unfortunately  state  regulation  of  the  manufacture 
of  biologic  products  is  often  very  lax  and  inefficient. 
In  one  case  where  several  deaths  were  caused  by 
diphtheria  antitoxin  contaminated  with  the  virus  of 
tetanus,  the  product  was  manufactured  for  local  con- 
sumption, and  not  under  federal  control.  Because  of 
the  laxity  of  state  control,  unless  federal  supervision 
be  required  for  manufacture  of  such  products,  the 
federal  government  would  be  practically  powerless  to 
control  the  matter.  Further,  to  leave  this  necessary 
supervision  to  the  states  would  be  to  deny  the 
sovereignty  of  the  nation  in  this  regard,  and  it  would 
take  from  Congress  full  control  over  interstate  com- 
merce. 

§  241.  Authority  versus  policy.  Much  may  fre- 
quently   be    accomplished    without    full     authority. 


304  PUBLIC   HEALTH   ADMINISTRATION 

According  to  our  interpretation  it  is  the  duty  of  meat 
inspectors  to  make  sure  that  no  diseased  meat  shall 
enter  interstate  or  foreign  commerce.  When  a  carcass 
has  been  condemned  it  would  seem  to  be  official  duty 
to  make  sure  that  it  should  not  by  any  possibility  be 
returned  to  the  lot  of  accepted  pieces.  It  would  seem 
reasonable  to  require  that  such  carcasses  be  sent  at 
once  to  a  rendering  establishment.  Such  a  rule,  or 
regulation  might  very  properly  be  made  by  the  super- 
vising officer  as  a  condition  of  inspection.  True,  he 
might  have  no  authority  to  order  such  destruction, 
according  to  the  constitutional  provisions;  but  the 
requirement  would  still  be  reasonable.  There  is  no 
constitutional  provision  which  gives  a  shipper  a  right 
to  export  his  goods.  The  provision  which  gives  to 
Congress  sole  authority  in  regulating  interstate  com- 
merce, is  sufficient  to  cover  any  reasonable  regulations 
with  which  the  shipper  must  comply.  It  is  a  purely 
voluntary  agreement.  There  is  no  compulsion  about 
it.  The  government  says  to  the  shipper,  when  you 
comply  with  these  regulations  you  may  make  the  ship- 
ment; and  the  shipper  says  to  the  government,  I  will 
comply  with  these  regulations  on  condition  that  I  may 
then  make  shipment.  If  he  fails  to  keep  his  part  of 
the  agreement,  the  contract  is  rendered  null,  and  ship- 
ment may  then  be  denied  to  him,  not  only  as  to  the 
articles  specially  condemned  but  reasonably  he  may 
be  refused  any  shipment.  Having  broken  his  contract 
he  cannot  be  trusted.  On  the  other  hand,  if  he  does 
not  wish  to  comply  with  the  regulations,  he  may  still 
dispose  of  his  merchandise  to  local  customers,  so  far 
as  federal  control  is  concerned.  He  has  not  been 
deprived  of  his  property,  nor  of  its  lawful  use. 


PUBLIC    HEALTH    POWERS    AND    LIMITATIONS  305 

The  government  may  not  lawfully  demand  that  a 
condemned  carcass  be  destroyed.  It  may  require  this 
act  as  a  part  of  its  contract  with  the  shipper,  but  it  may 
not  make  this  absolute  demand.  Compliance  with  the 
requirement  rests  with  the  will  of  the  shipper.  It 
would  seem  to  be  bad  policy  for  him  to  refuse  to  com- 
ply, for  that  would  of  necessity  exclude  his  products 
from  the  wider  commerce,  and  it  would  put  his  more 
valuable  products  upon  a  par  with  those  of  less  value. 
Still,  in  the  absence  of  state  legislation,  should  the 
condemned  carcass  be  forcibly  taken  without  his  con- 
sent, it  is  probable  that  he  might  legally  recover  from 
the  officer  so  taking,  for  it  is  probable  that  such  for- 
cible taking  would  not  be  considered  as  authorized 
under  the  federal  Constitution.  The  officer  in  such 
case  would  be  exceeding  his  authority,  and  therefore 
would  be  not  an  officer  in  that  act,  but  a  private  wrong 
doer. 

Reasonable  policy  may  therefore  accomplish  that 
which  may  not  be  covered  by  constitutional  provisions. 
This  would  be  lawful,  though  not  authorized  by  law, 
in  the  sense  that  it  implies  authority.  The  only  author- 
ity in  the  matter  is  the  authority  under  contract. 

§  242.  Federal  control  over  means  of  transportation. 
Federal  control  over  interstate  and  foreign  commerce 
includes  of  necessity  the  means  used  for  the 
commerce.  A  statute  of  Louisiana  required  separate 
accommodations  for  whites  and  negroes,  but  it  was 
held  that  this  statute  could  not  apply  to  steamers  ply- 
ing the  Mississippi  river,  even  though  the  passengers 
be  traveling  from  one  point  in  the  state  to  another. 
If  such  a  law  be  valid,  a  neighboring  state  might  with 
equal  propriety  order  that  separate  accommodations 


306  PUBLIC    HEALTH   ADMINISTRATION 

be  not  furnished,  and  this  would  work  confusion  with 
interstate  commerce.7  In  the  case  of  railways,  the 
same  statute  may  be  complied  with  by  adding  extra 
cars  to  the  train,  and  the  statute  would  be  within  the 
constitutional  power  of  the  state  so  long  as  it  did  not 
operate  upon  interstate  traffic.8  It  is  fully  within  the 
authority  of  Congress,  therefore,  to  enact  such  statutes 
as  may  be  indicated  for  the  preservation  of  the  lives 
and  health  of  those  engaged  in  interstate  traffic.  Con- 
gress has  acted  under  this  right  to  regulate  the  condi- 
tions under  which  ships  may  be  navigated  upon 
interstate  waters,  or  the  high  seas.  It  may  properly 
go  further.  Epidemics  of  typhoid  fever  have  been 
traced  to  the  water  used  for  drinking  purposes  upon 
Mississippi  river  steamers  engaged  in  interstate  traffic. 
One  series  of  such  epidemics  occurred  as  the  result 
of  carelessness  upon  an  excursion  boat  which  touched 
three  states,  Illinois,  Iowa,  and  Missouri,  and  the  epi- 
demics were  found  in  each  state.  Certain  excursion 
boats  upon  Lake  Michigan  were  found  to  yield  an 
undue  proportion  of  typhoid  patients  for  the  marine 
hospitals.  Investigation  showed  that,  though  the 
water  for  the  drinking  tanks  was  taken  in  out  in  the 
lake,  while  the  boats  lay  in  the  Chicago  or  Milwaukee 
harbors  it  was  customary  to  use  the  same  pipes  for 
pumping  water  for  the  boilers.  In  that  way  the  drink- 
ing water  was  also  polluted.  Clearly,  neither  the  state 
of  Illinois,  nor  that  of  Wisconsin,  could  have  jurisdic- 
tion over  such  a  matter,  though  it  be  of  a  purely  police 
nature.  The  responsibility  must  rest  with  the  federal 
government  to  give  this  protection  to  its  citizens. 

7  Hall  v.  DuCuir,  95  U.  S.  485. 
s  Louisville,  etc.,  Ry.  Co.  v.  Mis- 
sissippi, 133  U.  S.  587. 


PUBLIC    HEALTH   POWERS   AND    LIMITATIONS  307 

So  on  the  railroads  engaged  in  interstate  traffic,  it 
is  qnite  within  the  province  of  the  federal  government 
to  make  such  rules  as  to  car  couplers  as  will  serve  to 
prevent  accidents.  It  might  very  properly  also  enact 
rules  and  regulations  for  railway  employees  engaged 
in  the  care  of  interstate  cars,  so  as  to  prevent  acci- 
dents. "The  power  of  Congress  under  the  commerce 
clause  of  the  Constitution  is  plenary  and  competent  to 
protect  persons  and  property  moving  in  interstate  com- 
merce from  all  danger,  no  matter  what  the  source  may 
be;  to  that  end  Congress  may  require  all  vehicles, 
moving  on  highways  of  interstate  commerce  to  be  so 
equipped  as  to  avoid  danger  to  persons  and  property 
moving  in  interstate  commerce. ' ' 9  Under  general 
authority  granted  to  the  Public  Health  Service,  general 
rules  and  regulations  have  been  issued  governing  the 
various  matters  connected  with  interstate  transporta- 
tion, specifying  as  to  the  cleaning  of  cars,  supply  of 
water  and  ice  for  cars,  disinfection  of  cars,  etc.  The 
authority  resides  with  the  nation  and  policy  indicates 
that  this  authority  should  be  so  used.  So  long  as  these 
matters  are  left  under  the  control  of  individual  states, 
there  has  been  such  conflict  as  to  requirements  that 
the  railroad  companies  have  been  embarrassed,  and 
state  governments  have  found  difficulty  in  enforcing 
their  own  laws. 

§  243.  Purity  of  interstate  waters.  Under  the  com- 
merce clause  of  the  Constitution  Congress  has  seen  fit 
to  take  charge  of  navigable  waters.  (§  442.)  Before 
a  city  may  do  anything  which  will  by  any  possibility 
interfere  with  navigation,  as  by  extending  a  water  in- 

»  Southern  Ry.  Co.  v.  U.  S.,  222 
U.  S.  20. 


308  PUBLIC    HEALTH   ADMINISTRATION 

take  pipe  into  a  lake  or  river,  it  must  receive  federal 
permission.  There  may  possibly  be  some  question  as 
to  the  authority  of  Congress  to  legislate  to  prevent  pol- 
lution of  such  interstate  waters.  In  the  case  of  such 
pollution  by  the  citizens  of  one  state,  the  citizens  of 
another  state,  injured  thereby,  might,  upon  proof 
thereof,  collect  civil  damages  from  the  offending  state. 
Such  civil  damages  might  be  assessed  so  high  as  to 
force  the  offending  state  to  abate  the  nuisance,  but 
such  action  is  really  civil,  not  governmental.  True, 
commerce  may  be  conducted  on  the  waters  without  the 
use  of  boats,  as  when  logs  are  floated  from  one  place  to 
another,  and  on  the  same  basis  it  has  sometimes  been 
claimed  that  the  transportation  of  disease  germs  in  the 
water  could  come  under  the  federal  control  of  com- 
merce. Desirable  as  this  reasoning  seems  to  be  in  this 
case,  it  does  not  appear  to  us  that  it  is  sound.  Disease 
is  often  an  attending  evil  of  commerce,  but  disease 
germs  are  not  subjects  of  commerce.10  It  will  not  be 
permitted  that  at  one  time  one  interpretation  be  placed 
upon  a  subject,  and  at  another  time,  though  for  good 
reason,  the  interpretation  be  reversed.  That  must  of 
necessity  work  confusion,  and  give  rise  to  a  claim  of 
arbitrariness  on  the  part  of  the  court.  By  very  many 
decisions  the  powers  of  Congress  over  navigable  waters 
are  those  which  pertain  to  preserving  such  waters  as  a 
means  of  communication.  It  is  true  that  if  the  dis- 
charge of  a  sewer  into  a  navigable  stream  tends  to 
obstruct  navigation  Congress  would  have  full  power  to 
prohibit  such  discharge;  but  it  would  seem  that  there 
must  be  an  actual  obstruction  to  navigation,  clearly 

10  License    Cases,    5    How.    504,       465 ;   Commsrs.  of  Immigration  v. 
576;   Leisy  v.   Hardin,   135  U.  S.       Brandt,  26  La.  Ann.  29. 
100;  R.  R.  Co.  v.  Husen,  95  U.  S. 


PUBLIC    HEALTH    POWERS   AND   LIMITATIONS  309 

traceable  to  the  sewer.  Such  obstruction  may  be 
shown  in  some  streams  to  a  degree  which  would  war- 
rant action  of  Congress.  It  seems  doubtful,  however, 
in  case  of  such  legislation  by  Congress  that  the  act 
would  be  held  valid  in  the  absence  of  such  actual 
obstruction. 

Water  itself  may  be  an  object  of  commerce,  and  as 
such  it  is  clearly  within  the  authority  of  Congress  to 
pass  such  legislation  as  shall  be  necessary  and  rea- 
sonable to  preserve  the  purity  of  waters  transported 
from  one  state  to  another.  Apparently  it  matters  not 
whether  that  water  be  transported  in  bottles,  casks, 
tanks,  conduits,  or  by  open  channels,  the  authority  of 
Congress  would  be  the  same.  In  point  of  fact  each 
method  has  been  used  for  the  interstate  traffic  in  water, 
except  possibly  the  last  mentioned.  Apparently 
there  should  be  a  distinction  between  a  case  in  which 
the  water  of  a  spring,  or  lake  in  one  state  is  piped,  or 
otherwise  conducted  into  another  state,  and  either  the 
water  itself  is  sold,  or  the  ground  from  which  it  is 
derived  is  sold  or  leased  to  the  water  company  or 
municipality,  and  a  case  in  which  the  waters  arising 
in  one  state,  but  flowing  through  a  natural  channel 
into  or  by  another  state,  are  there  taken  for  domestic 
use.  In  the  one  case  it  would  seem  to  be  within  the 
power  and  duty  of  the  federal  government  to  enact 
such  statutes  as  shall  prevent  pollution,  and  preserve 
the  purity  of  the  waters  thus  supplied.  It  is  within 
the  power  of  Congress,  for  such  waters  are  clearly 
articles  of  interstate  commerce.  It  is  the  duty,  for  the 
source  of  supply,  being  within  the  limits  of  another 
commonwealth,  is  out  of  the  jurisdiction  of  the  state 
whose  citizens  are  dependent  upon  this  water.     Water 


310  PUBLIC    HEALTH   ADMINISTRATION 

taken  from  a  stream  or  lake,  where  the  intake  is  sit- 
uated within  the  state  using  the  water,  can  hardly  be 
called  interstate  commerce,  although  the  origin  of  the 
water  be  in  an  adjoining  state.  The  commercial  nature 
of  the  article  begins  and  ends  within  one  state. 

Article  1,  Section  8,  paragraph  10  gives  to  Con- 
gress power  "to  define  and  punish  piracies  and  felonies 
committed  on  the  high  seas,  and  offenses  against  the 
law  of  nations."  Article  III,  Section  2  of  the  Constitu- 
tion grants  to  the  federal  courts  jurisdiction  over  ' '  all 
cases  of  admiralty  and  maritime  jurisdiction. ' '  Neither 
of  these  provisions  would  seem  to  warrant  legislation 
by  Congress  prohibiting  the  pollution,  from  a  sani- 
tary point  of  view,  of  interstate  lakes  and  rivers.  The 
term  "high  seas"  has  been  legally  interpreted  as 
referring  to  extra  territorial  waters,  and  not  including 
tidal  rivers,  bays,  and  harbors.11  Pollution  of  the 
waters  through  the  discharge  of  sewage  is  within  the 
police  jurisdiction  of  the  individual  states,  and  is  not 
therefore  on  the  high  seas.  It  is  within  the  tide  waters. 
As  to  water  supply,  moreover,  the  problem  is  not  on 
the  salt  waters,  but  the  inland  lakes  and  rivers.  Pol- 
lution of  oyster  beds,  as  affecting  articles  of  interstate 
traffic,  might  be  lawfully  prevented  by  the  federal  gov- 
ernment on  other  grounds,  even  though  within  the  tidal 
waters.  It  is  not  the  pollution  of  the  waters,  but  the 
pollution  of  the  oyster  beds  which  would  then  be  the 
object  of  the  legislation. 

Again:  the  term  "felonies"  refers  to  grave  crimes, 
rather  than  to  misdemeanors,  whereas  pollution  of  the 

ii  U.  S.  v.  Wiltberger,  5  Wheat.  son,  398 ;  IT.  S.  v.  Bevans,  3  Wheat. 

76;    U.    S.    v.    Grush,    5    Mason,  336;   U.  S.  v.  Furlong,  5  Wheat. 

290;  U.  S.  v.  Boss,  1  Gallison,  624,  134;    U.    S.  v.   Holmes,   5   Wheat, 

but  see  DeLovio  v.  Boit,  2  Galli-  412. 


PUBLIC    HEALTH    POWERS    AND    LIMITATIONS  311 

water  supply  would  be  classified  as  a  misdemeanor. 
The  federal  government  has  admiralty  and  maritime 
jurisdiction  relative  to  matter  within  harbors,  and 
rivers;  but  such  jurisdiction  refers  exclusively  to 
matters  pertaining  to  the  conduct  and  care  of  the 
boats,  with  their  management. 

Although  the  Great  Lakes  and  rivers  may  each  be 
interstate,  there  is  no  portion  which  is  not  intra  state. 
The  area  of  Lake  Michigan,  for  example,  is  entirely 
divided  between  Indiana,  Illinois,  Michigan,  and  Wis- 
consin. By  the  constitution  of  Illinois  the  boundary 
of  the  state  is  fixed  at  the  middle  of  the  lake,  and  by 
statute,  the  jurisdiction  of  Cook  and  Lake  Counties 
extends  to  the  same  line.  Although  the  ordinary  juris- 
diction of  a  city  upon  the  shores  of  the  lake  extends 
only  three  miles  from  low  water  mark,  the  jurisdiction 
of  the  same  city  may  extend  ten  miles  out  to  protect 
the  purity  of  its  water  supply.  Though  the  admiralty 
jurisdiction  of  the  federal  government  extends  into  the 
harbors,  Congress  has  no  general  police  jurisdiction 
over  any  portion  of  the  lake.  Many  members  of  the 
bar,  generally  well  informed,  seem  to  be  quite  ' '  at  sea ' ' 
upon  this  point,  affirming  that  the  jurisdiction  of  the 
state  extends  only  three  miles  from  the  shore.  We 
find,  however,  no  basis  for  such  a  statement,  as  the 
charters  of  the  states,  and  the  acts  of  Congress  estab- 
lishing the  states,  clearly  so  fix  state  boundaries  as  to 
include  all  of  the  waters  within  the  limits  of  the  nation. 

Contractors  dredging  the  Chicago  river,  under  the 
authority  of  the  War  Department,  were  accustomed  to 
dump  their  dredgings  where  they  polluted  the  water 
supply  of  the  city  of  Chicago,  contrary  to  the  ordi- 
nances of  the  city.     Upon  appeal  having  been  made  to 


312  PUBLIC   HEALTH  ADMINISTRATION 

the  authorities  at  Washington,  Mr.  Attorney  General 
Griggs  gave  an  opinion  saying, ' '  "While  an  ordinance  of 
the  city  of  Chicago  may,  as  to  all  persons  subject  to  its 
jurisdiction,  forbid  the  deposit  of  any  heavy  substance 
in  the  waters  of  Lake  Michigan  within  eight  miles  of 
the  shore  in  front  of  that  city,  it  cannot  control  or  limit 
the  power  of  Congress  over  the  navigable  waters  of  the 
United  States,  nor  dictate  where  it  shall  or  where  it 
shall  not  deposit,  within  such  waters,  material  removed 
in  the  improvement  of  one  of  its  harbors."  It  seems 
unfortunate  that  this  matter  was  not  taken  to  the  high 
court  for  determination.  The  problem  was  solved  by 
an  act  of  Congress  prohibiting  the  dumping  com- 
plained of.  The  ex  cathedra  statement  of  the  Attorney 
General  seems  to  ignore  certain  facts.  As  regards 
obstruction  to  navigation  the  opinion  seems  to  be 
sound,  but  the  complaint  was  not  with  reference  to 
navigation.  The  filth  removed  from  the  river  bottom 
was  laden  with  the  germs  of  disease,  and  being  dumped 
near  the  intake  cribs  the  water  supply  of  the  city  was 
polluted.  The  place  where  the  dumping  occurred  was 
well  within  the  limits  of  the  state.  The  state  had 
granted  to  the  city  full  authority  to  protect  the  purity 
of  its  water  supply,  to  a  point  ten  miles  from  the  shore. 
Within  that  authority  the  city  had  prohibited  such 
dumping.  This  was  all  within  the  police  power  of  the 
state  to  protect  the  lives  and  health  of  its  citizens.  As 
will  be  subsequently  shown,  by  numerous  cases  the  Su- 
preme Court  of  the  United  States  has  always  upheld 
this  police  power  of  states  to  protect  life  and  health. 
An  officer  who  commits  an  illegal  act  is  in  such  act  no 
longer  an  officer,  but  a  private  wrong  doer.  In  making 
a  contract  with  the  dredging  company,  therefore,  it 


PUBLIC    HEALTH   POWERS   AND   LIMITATIONS  313 

was  presumed  that  the  government  expected  the  dredg- 
ing company  to  so  dump  its  dredgings  that  they  would 
not  violate  either  the  laws  of  the  state  or  city  pertain- 
ing to  health.  The  Attorney  General,  in  his  opinion, 
distinctly  admitted  the  power  of  the  city  to  enact  the 
ordinance.  He  simply  denied  that  agents  of  the  fed- 
eral government  were  subject  to  such  ordinances.  In 
substantiation  of  his  claim  he  cited  no  cases,  and  he 
forgot  the  sanitary  nature  of  the  ordinance. 

§  244.  Enforcement  of  state  acts.  There  is  one  fur- 
ther clause  of  the  federal  Constitution  which  may 
assist  sanitary  measures  to  some  extent.  The  first  sec- 
tion of  Article  IV  directs:  "Full  faith  and  credit 
shall  be  given  in  each  state  to  the  public  acts,  records, 
and  judicial  proceedings  of  every  other  state;  and  the 
Congress  may,  by  general  laws,  prescribe  the  manner 
in  which  such  acts,  records,  and  proceedings,  shall  be 
proved  and  the  effect  thereof. ' ' 

It  has  been  a  custom  of  parties  divorced,  and  by  the 
divorce  prohibited  from  remarrying  within  a  stated 
time,  to  dodge  or  attempt  to  dodge,  this  prohibition,  by 
going  to  another  state  and  there  marrying  according  to 
the  laws  of  the  second  state.  Such  marriages  have 
been  declared  illegal  by  Judge  Tuttle  of  the  Superior 
Court  of  Cook  County,  but  the  matter  has  not  been 
passed  upon  by  the  Supreme  Court.  It  would  seem, 
under  this  Section  of  the  Constitution,  to  be  within  the 
authority  of  Congress  to  make  such  marriages  crim- 
inal, and  subject  all  participants  in  such  illegal  mar- 
riages to  certain  prescribed  penalties.  Under  the 
existing  circumstances,  the  clerk  in  the  second  state, 
and  the  minister  performing  the  ceremony,  are  not 
subject  to  the  jurisdiction  of  the  state  in  which  the 


314  PUBLIC   HEALTH   ADMINISTRATION 

divorce  is  granted.  Though  the  participants  in  such 
second  marriage  may  be  guilty  of  contempt  of  Court, 
they  are  free  so  long  as  they  remain  without  the  juris- 
diction of  the  Court.  Apparently  the  only  means  open 
for  enforcing  such  prohibitive  decrees  is  by  congress- 
ional action.  Marriage  has  a  direct  relationship  to 
that  field  of  public  health  designated  as  Eugenics, 
which  pertains  to  the  betterment  of  the  race.  It  is 
possible,  also,  that  in  other  matters  pertaining  to  the 
public  health,  this  same  provision  of  the  Constitution 
may  be  applicable. 

State 

§  245.  Sanitary  authority  of  the  states.  The  Tenth 
Amendment  to  the  federal  Constitution  provides:  "The 
powers  not  delegated  to  the  United  States  by  the  Con- 
stitution, nor  prohibited  by  it  to  the  states,  are 
reserved  to  the  states  respectively,  or  to  the  people." 
This  provision  was  not  included  in  the  original  draft 
of  the  Constitution.  It  seemed  to  be  a  reasonable 
stipulation  insisted  upon  by  the  representatives  of 
certain  state  ratification  conventions.  Included  under 
this  reservation  is  that  peculiar  authority  called  police 
power.  Originally  this  power  pertained  only  to  the 
internal  affairs  of  the  individual  state.  At  the  time 
of  the  adoption  of  this  amendment  the  states  were  not 
thickly  settled  and  as  compared  with  the  present  time 
they  were  isolated.  The  provisions  necessary  under  the 
then  existing  conditions  were  not  numerous.  As  has 
been  shown  by  Professor  Beard,12  the  demand  for  the 

12  An  Economic  Interpretation 
of  the  Constitution  of  the  United 
States. 


PUBLIC    HEALTH    POWERS   AND    LIMITATIONS  315 

enactment  of  the  Constitution  was  largely  commercial 
in  origin,  and  the  provisions  adopted  were  very 
largely  those  which  seemed  desirable  for  the  safe- 
guarding of  business  transactions.  Practically  the 
only  ordinary  relationships  between  the  citizens  of 
different  states  were  those  pertaining  to  commerce. 
There  was  no  science  of  preventive  medicine  at  that 
time.  Any  community  might  adopt  such  methods  as 
seemed  requisite  for  the  protection  of  the  lives  and 
property  of  its  citizens,  without  any  possible  injury 
to  citizens  of  other  states,  so  long  as  commercial  rela- 
tionships were  not  disturbed.  The  Congressional  con- 
trol over  interstate  traffic  therefore  gave  all  the  pro- 
tection needed  to  the  citizens  of  one  state  from  the 
actions  or  negligence  of  other  states. 

Today  all  this  is  changed.  This  provision,  which 
was  never  really  needed,  and  was  inserted  simply  to 
satisfy  the  fears  of  some  colonists,  has  now  become  a 
serious  hindrance  for  the  nation.  There  is  great  con- 
fusion occasioned  by  the  diverse  laws  of  the  states 
relative  to  marriage  and  divorce,  for  example.  The 
fact  that  a  man  may  be  permitted  to  practice  medicine 
in  one  state  grants  relatively  little  assurance  that  he 
may  be  permitted  to  enter  practice  in  any  other.  So 
long  as  he  is  a  law  abiding  citizen  he  may  go  freely 
from  one  state  to  another,  and  he  may  engage  in  almost 
any  business.  He  may  know  before  he  starts  from  his 
old  to  his  new  home  that  he  may  thus  engage  in  ordi- 
nary business,  but  there  is  always  an  uncertainty  as  to 
a  physician's  being  able  to  get  a  license  in  another 
state.  Here  the  federal  government  is  weak.  It  can 
afford  him  no  protection.  The  federal  government 
may  make  treaties  with  foreign  nations  pertaining  to 


316  PUBLIC   HEALTH   ADMINISTRATION 

the  reciprocal  rights  of  citizens.  The  states  may  not 
have  such  foreign  relationships;  but  any  state  may 
more  or  less  effectually  block  the  efforts  of  the  nation. 
Questions  relating  to  the  relative  powers  of  the  state 
and  nation  give  rise  to  many  expensive  litigations. 

No  longer  are  the  states  isolated  commonwealths. 
The  boundaries  between  states  are  imaginary  lines 
which  work  great  confusion  of  authority.  The  provi- 
sion which  was  at  first  innocent  has  become  a  hind- 
rance. It  is  the  one  great  defect  in  the  Constitution — 
the  one  great  blemish  in  the  national  idea.  The  abro- 
gation of  the  Tenth  Amendment  to  the  Constitution 
would  empower  the  national  government  to  take  the 
full  charge  of  conflicting  methods,  and  to  bring  har- 
mony in  the  place  of  chaos.  Only  this  repeal  of  the 
Tenth  Amendment  can  raise  the  nation  to  the  dignity 
which  it  should  attain.  It  has  served  its  purpose.  Its 
preservation  can  give  no  further  advantage  to  the 
grand  cause  of  government,  but  it  may  be  used  as 
one  of  the  tools  for  attaining  petty  advantages  against 
the  general  good. 

While  it  might  often  be  desirable  that  the  nation 
have  full  authority  in  all  matters  pertaining  to  the 
public  health,  the  condition  which  confronts  us  is  one 
of  fact,  not  of  ideals.  Since  the  basis  of  most  opera- 
tions for  the  preservation  of  life  and  health  is  in  police 
power,  and  since  that  power  is  reserved  to  the  states 
by  the  Constitution,  it  necessarily  follows  that  the 
supreme  authority  in  almost  all  legislative  or  execu- 
tive action  for  such  preservation  of  health  resides  in 
the  individual  states. 

§246.  State  authority  in  health  recognized  by  the 
federal  government.    The  national   government  has 


PUBLIC    HEALTH    POWERS   AND   LIMITATIONS  317 

recognized  the  authority  of  the  states  in  matters  per- 
taining to  health.  Congress,  in  a  general  law  relative 
to  quarantine,  has  directed  federal  cooperation  with 
state  laws  and  officials.13  In  harmony  with  this  idea 
the  naval  authorities  surrendered  an  infected  vessel  to 
the  health  officer  of  a  port.  The  supreme  court  of 
New  Hampshire  held  14  that  this  did  not  make  the  port 
health  official  an  officer  of  the  United  States. 

§  247.  Conflict  between  state  health  regulation  and 
national  law.  Although  national  laws  are  superior  to 
those  of  the  individual  states  when  alike  in  nature,  the 
inherent  necessity  of  certain  kinds  of  governmental 
action  gives  them  greater  importance  than  other 
classes  of  legislation  or  administration.  The  motto  of 
police  power  is  Salus  populi  est  suprema  lex.  That 
which  is  necessary  to  preserve  the  life  and  health  of 
citizens  is  more  important  than  mere  commercial  rela- 
tions. It  does  sometimes  happen,  therefore,  that  a 
state  law  or  regulation  pertaining  to  health  adminis- 
tration may  be  given  preference  over  a  federal  statute 
or  even  the  provisions  of  a  treaty  with  a  foreign 
country. 

§  248.  State  stoppage  of  navigation.  A  leading  case 
showing  that  the  state  laws  may  successfully  interfere 
with  national  administration  was  the  Blackbird  Creek 
case,  decided  in  1829  by  the  Supreme  Court  of  the 
United  States.15  This  case,  which  was  not  at  the  time 
deemed  important,  and  was  not  elaborately  considered 
by  the  court,  has  been  the  basis  upon  which  subsequent 
decisions  have  been  founded,  involving  very  much 
more  than  did  this.     The  Blackbird  Creek  Company, 

13  See.  3  of  Act  of  Feb.  15,  1893.  is  "Wilson  v.  Blackbird  Creek  Co., 

i*  Delano  v.  Goodwin,  48  N.  H.       2  Peters,  245. 
203. 


318  PUBLIC    HEALTH   ADMINISTRATION 

incorporated  under  the  laws  of  Delaware,  was  the 
owner  of  marsh  lands  bordering  Blackbird  Creek.  The 
tide  ebbed  and  flowed  in  this  creek,  and  it  was  used  for 
the  navigation  of  small  vessels.  In  order  to  reclaim 
the  marsh  land  the  Company  empowered  by  the  state 
of  Delaware  erected  a  dam  across  the  creek.  Wilson 
was  the  owner  of  a  sloop  licensed  and  enrolled  under 
the  statutes  of  the  United  States.  He  found  that  the 
dam  arrested  his  course,  and  he  therefore  broke  and 
injured  the  dam.  The  Company  sued  him  for  damages. 
Wilson  justified  his  trespass  by  setting  up  his  license 
and  enrollment,  and  his  right  to  navigate  the  creek, 
and  that  the  dam  was  an  unlawful  obstruction  to  his 
right  which  he  might  properly,  and  did,  remove.  The 
Company  demurred.  The  only  question  arising  was 
the  validity  of  the  statute  of  the  state  of  Delaware. 
The  supreme  court  of  the  State  upheld  this  validity 
of  the  statute,  and  found  for  the  plaintiff.  Wilson 
then  appealed  to  the  Supreme  Court  of  the  United 
States.  Chief  Justice  Marshall  delivered  the  opinion 
of  the  Court,  as  follows : 

"The  act  of  Assembly  by  which  the  plaintiffs  were 
authorized  to  construct  their  dam  plainly  shows  that 
this  is  one  of  those  many  creeks  passing  through  a 
deep,  level  marsh  adjoining  the  Delaware,  up  which  the 
tide  flows  for  some  distance.  The  value  of  the  prop- 
erty on  its  banks  must  be  enhanced  by  excluding  the 
water  from  the  marsh,  and  the  health  of  the  inhabi- 
tants probably  improved.  Measures  calculated  to 
produce  these  objects,  provided  they  do  not  come  into 
collision  with  the  powers  of  the  general  government, 
are  undoubtedly  within  those  powers  which  are 
reserved  to  the  states.    But  the  measure  authorized  bj^ 


PUBLIC    HEALTH    POWERS    AND    LIMITATION'S  31  (J 

this  act  stops  a  navigable  creek,  and  must  be  supposed 
to  abridge  the  rights  of  those  who  have  been  accus- 
tomed to  use  it.  But  this  abridgment,  unless  it  comes 
in  conflict  with  the  Constitution  or  a  law  of  the  United 
States,  is  an  affair  between  the  government  of  Dela- 
ware and  its  citizens,  of  which  this  court  can  take  no 
cognizance.  The  counsel  for  the  plaintiff  in  error 
insist  that  it  comes  in  conflict  with  the  power  of  the 
United  States  to  regulate  commerce  with  foreign 
nations,  and  among  the  several  states.  If  Congress 
had  passed  any  act  which  bore  upon  the  case;  any  act 
in  execution  of  the  power  to  regulate  commerce,  the 
object  of  which  was  to  control  state  legislation  over 
these  small  navigable  creeks  into  which  the  tide  flows, 
we  should  not  feel  much  difficulty  in  saying  that  a  state 
law  coming  in  conflict  with  such  an  act  would  be  void. 
But  Congress  has  passed  no  such  act.  The  repugnancy 
of  the  law  of  Delaware  to  the  Constitution  is  placed 
entirely  on  its  repugnancy  to  the  power  to  regulate 
commerce  with  foreign  nations  and  among  the  several 
states;  a  power  which  has  not  been  so  exercised  as  to 
affect  the  question.  We  do  not  think  that  the  act 
empowering  the  company  to  place  a  dam  across  the 
creek,  can,  under  all  the  circumstances  of  the  case,  be 
considered  as  repugnant  to  the  power  to  regulate  com- 
merce in  its  dormant  state,  or  as  being  in  conflict  with 
any  law  passed  upon  the  subject.' ' 

At  a  later  date  the  state  of  Pennsylvania  passed  an 
act  enabling  the  city  of  Philadelphia  to  erect  a  bridge 
across  the  Schuylkill  river,  below  the  docks  of  one  Gil- 
man.  This  bridge,  being  permanent,  and  only  thirty 
feet  above  the  water,  would  prevent  coal  bearing  ships 
having   masts    to    come    to    Oilman's    dock.     Gilman 


320  PUBLIC    HEALTH   ADMINISTRATION 

therefore  sought  to  enjoin  the  city  from  erecting  the 
bridge,  basing  his  plea  upon  its  interference  with  com- 
merce. The  Supreme  Court  upheld  16  the  power  of 
the  city  and  state,  basing  their  decision  upon  the 
Blackbird  Creek  case.  Justice  Clifford,  Wayne  and 
Davis  concurring,  delivered  a  dissenting  opinion,  and 
affirmed  that  the  Blackbird  Creek  case  was  decided  as 
a  sanitary  measure.  He  said:  "Judgment  was  ren- 
dered in  that  case  by  the  same  court  which  gave  judg- 
ment in  the  case  of  Gibbons  v.  Ogden; 17  and  there  is 
not  a  man  living,  I  suppose,  who  has  any  reason  to  con- 
clude that  the  constitutional  views  of  the  court  had  at 
that  time  undergone  any  change.  Instead  of  overrul- 
ing that  case,  it  will  he  seen  that  the  Chief  Justice  who 
gave  the  opinion  did  not  even  allude  to  it,  although 
as  a  sound  exposition  of  the  Constitution  of  the  United 
States,  it  is  second  in  importance  to  no  one  which  that 
great  magistrate  ever  delivered.  Evidently  he  had  no 
occasion  to  refer  to  it  or  to  any  of  its  doctrines,  as  he 
spoke  of  the  creek  mentioned  in  the  case  as  a  low 
sluggish  water,  of  little  or  no  consequence,  and  treated 
the  erection  of  the  dam  as  one  adapted  to  reclaim 
the  adjacent  marshes  and  as  essential  to  the  public 
health,  and  sustained  the  constitutionality  of  the  law 
authorizing  the  erection,  upon  the  ground  that  it  was 
within  the  reserved  police  power  of  the  state. ' '  There 
was  no  sanitary  question  involved  in  the  Philadelphia 
bridge  case. 

The  state  of  New  York  enacted  a  statute  which 
required  masters  of  vessels  arriving  at  New  York  from 
a  foreign  port,  or  from  a  port  in  another  state,  to  make 

i6  Gilman     v.     Philadelphia,     3  it  9  Wheat.  1. 

Wall.  713. 


PUBLIC    HEALTH    POWERS    AND    LIMITATIONS  321 

a  report  in  writing  within  twenty-four  hours  after  arri- 
val, giving  the  names,  ages,  and  last  place  of  residence 
of  all  passengers.  One  Miln  having  arrived  with  pas- 
sengers, and  having  failed  to  make  report  as  required 
by  the  statute,  was  sued.  He  defended  his  action  on 
the  ground  that  the  state  statute  was  a  violation  of 
that  portion  of  the  Constitution  which  gave  to  Con- 
gress jurisdiction  over  interstate  and  foreign  com- 
merce. This  case  was  carried  to  the  high  court,  and 
the  authority  of  the  state  in  the  matter  was  upheld  as 
a  police  measure.18  It  was  not  a  regulation  of  com- 
merce. The  court  said:  "It  is  apparent  from  the 
whole  scope  of  the  law,  that  the  object  of  the  legisla- 
ture was  to  prevent  New  York  from  being  burdened  by 
an  influx  of  persons  brought  thither  in  ships,  either 
from  foreign  countries,  or  from  any  other  of  the  states; 
and  for  that  purpose  a  report  was  required  of  the 
names,  place  of  birth,  etc.  of  all  passengers,  that  the 
necessary  steps  might  be  taken  by  the  city  authorities 
to  prevent  them  from  becoming  chargeable  as  paupers. 
Now  we  hold  that  both  the  end,  and  the  means  here 
used,  are  within  the  competency  of  the  states.  *  *  * 
"That  a  state  has  the  same  undeniable,  unlimited  jur- 
isdiction over  all  persons  and  things  within  its  terri- 
torial limits,  as  any  foreign  nation,  where  that  juris- 
diction is  not  surrendered  or  restrained  by  the  Con- 
stitution of  the  United  States:  that,  by  virtue  of  this 
it  is  not  only  the  right  but  the  bounden  and  solemn 
duty  of  a  state,  to  advance  the  safety,  happiness,  and 
welfare,  by  any  and  every  act  of  legislation  which  it 
may  deem  to  be  conducive  to  those  ends,  where  the 

is  City  of  New  York  v.  Miln,  11 
Pet.  102. 


322  PUBLIC    HEALTH   ADMINISTRATION 

power  over  the  particular  subject,  or  the  manner  of  its 
exercise,  is  not  surrendered  or  restrained  in  the 
manner  just  stated :  that  all  these  powers  which  relate 
to  municipal  legislation,  or  what  may,  perhaps,  more 
properly  be  called  internal  police,  are  not  thus  sur- 
rendered or  restrained;  and  that  consequently,  in  rela- 
tion to  these  the  authority  of  a  state  is  complete, 
unqualified,  and  exclusive." 

In  Gibbons  v.  Ogden,19  while  speaking  of  inspection 
laws,  Chief  Justice  Marshall  said :  ' '  They  form  a  por- 
tion of  that  immense  mass  of  legislation  which 
embraces  everything  within  the  territory  of  a  state  not 
surrendered  to  the  general  government;  all  which  can 
be  most  advantageously  exercised  by  the  states  them- 
selves. Inspection  laws,  quarantine  laws,  health  laws 
of  every  description — are  component  parts  of  this 
mass.  No  direct  general  power  over  these  objects  is 
granted  to  Congress;  and,  consequently,  they  remain 
subject  to  state  legislation." 

Likewise,  we  find  the  statement  in  Barbier  v.  Con- 
nolly,20 that  the  police  power  of  the  state  includes  the 
authority  "to  prescribe  regulations  to  promote  the 
health,  peace,  morals,  education,  and  good  order  of  the 
people."  And  in  Jacobson  v.  Massachusetts,  Mr.  Jus- 
tice Harlan  says:21  "The  authority  of  the  state  to 
enact  this  statute  is  to  be  referred  to  what  is  commonly 
called  the  police  power — a  power  which  the  state  did 
not  surrender  when  becoming  a  member  of  the  Union 
under  the  Constitution.  Although  this  court  has 
refrained  from  any  attempt  to  define  the  limits  of  the 
power,  yet  it  has  distinctly  recognized  the  authority 

is  9  Wheat.  1-  21  197  IT.  S.  11,  25. 

20  113  TJ.  S.  27,  31. 


PUBLIC    HEALTH    POWERS   AND    LIMITATIONS  323 

of  a  state  to  enact  quarantine  laws  and  'health  laws  of 
every  description;'  indeed  all  laws  that  relate  to  mat- 
ters completely  within  its  territory,  and  which  do  not 
by  their  necessary  operation  affect  the  people  of  other 
states." 

§  249.  State  authority  in  matters  of  health  is  exclu- 
sive. From  these  and  other  decisions  it  is  apparent 
that  the  power  to  legislate  on  matters  pertaining 
directly,  and  solely,  to  the  health  of  the  nation  resides 
in  the  individual  states,  and  that  the  federal  govern- 
ment has  no  authority  in  the  subject.  This  is  true, 
though  in  their  necessary  operation  they  do  today 
often  affect  the  people  of  other  states,  and  perhaps 
they  may  even  conflict  with  our  relationship  with  for- 
eign nations.  Federal  statutes  relative  to  health  are 
therefore  practically  advisory.  For  that  reason  the 
national  quarantine  law  directs  federal  officers  to  rec- 
ognize state  and  local  statutes  and  regulations,  and  to 
cooperate  with  local  officers.  As  previously  stated, 
under  the  commerce  clause  the  national  government 
may  stand  guard  at  the  confines  of  the  state.  "Within 
the  state  it  has  no  authority.  The  national  govern- 
ment does  sometimes  send  its  officers  into  the  states  to 
aid  in  sanitary  work.  It  does  so  at  the  request  of  local 
officials.  Because  of  greater  efficiency,  due  to  a  broader 
training,  the  national  officers  may  be  given  charge;  but 
in  these  cases  they  are  practically  loaned  to  the  states, 
and  the  authority  comes  from  the  state,  not  from  the 
nation.  This  was  the  case  when  Surgeon  "White  took 
charge  at  New  Orleans  to  exterminate  yellow  fever.  It 
was  true  also  when  the  national  Public  Health  Service 
undertook  the  extermination  of  the  bubonic  plague 
from     California.     The    advisorv    character    of    the 


324  PUBLIC   HEALTH   ADMINISTRATION 

national  health  service  is  further  shown  in  the  inves- 
tigations relative  to  different  epidemic  diseases,  with 
the  instruction  given  as  to  preserving  the  purity  of 
water  supplies,  care  of  milk,  and  prevention  of  the 
hook-worm  disease,  for  example.  The  authority  rests 
in  the  state.    National  influence  must  be  advisory. 

§  250.  State  sanitary  authority  may  override  federal 
authority.  As  Mr.  Justice  Harlan  has  said : 22  "  The 
mere  grant  to  Congress  of  the  power  to  regulate  com- 
merce with  foreign  nations  and  among  the  states  did 
not,  without  legislation  by  Congress,  impair  the 
authority  of  the  states  to  establish  such  reasonable 
regulations  as  were  appropriate  for  the  protection  of 
the  health,  the  lives,  and  the  safety  of  their  people. ' ' 

This  power  of  the  state  has  been  sustained,  even 
when  it  stopped  navigation,23  as  by  a  dam  on  Kinloch 
Creek:  or  by  a  dike  erected  in  the  interest  of  public 
health.24  The  syllabus  in  Morgan's  Steamship  Co.  v. 
Louisiana  Board  of  Health  says:25  "The  system  of 
quarantine  laws  established  by  the  statutes  of  Louisi- 
ana is  a  rightful  exercise  of  the  police  power  for  the 
protection  of  health  which  is  not  forbidden  by  the 
Constitution  of  the  United  States.  While  some  of  the 
rules  of  that  system  may  amount  to  regulations  of 
commerce  with  foreign  nations  or  among  the  states, 
though  not  so  designed,  they  belong  to  that  class  which 
the  states  may  establish  until  Congress  acts  in  the 
matter,  by  covering  the  same  ground,  or  forbidding 
state  laws.  Congress,  so  far  from  doing  either  of 
these  things,  has,  by  the  act  of  1799 26  and  previous 

22  N.  Y.,  N.  H.  &  H.  R.  v.  N.  Y.,  24  Leovy  v.  U.  S.,  177  U.  S.  621. 
165  U.  S.  628,  631.  25  H8  U.  S.  455. 

23  Manigault  v.  Springs,  199  U.  26  Chap.  53,  Rev.  Stat. 
S.  473. 


PUBLIC    HEALTH    POWERS   AND    LIMITATIONS  325 

laws,  and  by  the  recent  act  of  1878 27  adopted  the  laws 
of  the  states  on  that  subject,  and  forbidden  all  inter- 
ference with  their  enforcement. ' ' 

The  power  of  the  state  relative  to  quarantine  was 
upheld  by  the  Supreme  Court,  when  a  steamship  com- 
pany was  not  permitted  to  land  its  passengers  at  cer- 
tain Louisiana  ports  then  under  quarantine,  though 
those  passengers  were  not  diseased,  nor  had  they  been 
exposed  to  any  infectious  disease,  so  far  as  was  shown, 
and  though  those  passengers  had  sailed  from  certain 
European  ports,  in  accordance  with  treaties  made 
between  United  States  and  European  nations.28 
(§408). 

§  251.  State  laws  not  conclusive  as  to  authority. 
While  it  is  true  that  in  matters  pertaining  to  the  public 
health  the  individual  legislatures  are  practically 
supreme,  it  is  not  sufficient  that  the  legislature  be 
satisfied  that  there  is  necessity  for  action,  neither 
has  it  an  unlimited  choice  of  methods.  State  statutes 
are  subject  to  the  review  of  the  federal  courts  and 
they  may  there  be  set  aside.  "The  federal  courts  do 
not  accept  as  conclusive  the  judgment  of  the  state  leg- 
islature that  a  measure  restraining  commerce  is  called 
for  by  the  interest  of  public  health,  but  inquire  in 
every  case  whether  there  is  a  legitimate  exercise  of  the 
police  power."29  Although  the  court  set  aside,  as  an 
unconstitutional  interference  with  commerce,  a  statute 
of  Missouri  which  prohibited  the  importation  of  cattle 
during  certain  months  from  certain  specified  territory, 
which  was   commonly  infected  by   the  Texas   cattle 

27  20  Stat.  37.  29  Freund,    Police    Power,    Sec. 

28  Compagnie  Francaise  de  Navi-      387. 
gation  a  Vapeur  v.  Louisiana  State 
Board  of  Health,  186  U.  S.  380. 


326  PUBLIC   HEALTH   ADMINISTRATION 

fever,30  the  same  court  upheld  the  law  of  Texas  which 
prohibited  the  importation  of  cattle  from  infected  ter- 
ritory, saying:31  "the  prevention  of  disease  is  the 
essence  of  a  quarantine  law.  Such  law  is  directed  not 
only  to  the  actually  diseased,  but  to  what  has  become 
exposed  to  disease."  The  Missouri  statute  was  a  bar 
against  a  certain  territory,  without  necessary  refer- 
ence to  infection;  but  cattle  might  be  imported  from 
other  territory  which  was  infected.  The  Texas  law 
excluded  only  cattle  from  actually  infected  territory. 
One  was  a  law  against  a  geographic  area;  the  other 
was  against  a  disease.  With  reference  to  the  Missouri 
statute  in  another  case,  the  court  said:32  "No  attempt 
was  made  to  show  that  all  Texas,  Mexican,  or  Indian 
cattle  coming  from  the  malarial  districts  during  the 
months  mentioned  were  infected  with  the  disease,  or 
that  such  cattle  were  so  generally  infected  that  it 
would  have  been  impossible  to  separate  the  healthy 
from  the  diseased.  Had  such  proof  been  given,  a  dif- 
ferent question  would  have  been  presented  for  the 
consideration  of  the  court."  Quarantine  regulations 
against  infected  areas  have  been  repeatedly  upheld.33 

§  252.  Meat  inspection.  It  is  well  recognized  that 
the  states  are  empowered  to  legislate  for  the  preserva- 
tion of  the  purity  of  the  food  supply.  It  is  true  that 
an  inspection  of  meat  may  best  be  made  where  it  is 
slaughtered,  for  the  appearance  of  an  animal  on  the 
hoof  may  show  at  a  glance  facts  which  might  easily 

30  Ey.  Co.  v.  Husen,  5  Otto,  465.  33  Easmussen  v.  Idaho,  181  IT.  S. 

3i  Smith  v.   St.  Louis   &   South-  198 ;   Smith  v.   St.  Louis  &  S.  W. 

western  Ey.    Co.,    181    IT.    S.    248,  E,    Co.,    181    IT.    S.    248;    Eeid   v. 

255.  Colorado,  187  IT.  S.  137. 

32Kimmish   v.    Ball,    129   U.    S. 
217. 


PUBLIC    HEALTH    POWERS   AND   LIMITATIONS  327 

be  overlooked  after  the  meat  is  exposed  for  sale;  but 
a  law  prohibiting  the  sale  of  meat  which  had  not  been 
inspected  in  the  state  before  slaughter  is  a  prohibition 
against  the  importation  of  an  article  of  commerce.34 
Such  a  statute  is  not  essentially  a  health  proposition. 
Its  real  action  is  commercial — a  restraint  of  commerce 
in  the  interest  of  local  industries.  It  is  therefore  an 
unconstitutional  invadement  of  the  authority  of  Con- 
gress. So,  also,  a  Virginia  statute  was  declared  uncon- 
stitutional, which  required  the  inspection  of  all  flour 
imported  from  other  states,  with  the  payment  of  a  fee 
therefor,  but  it  did  not  require  a  like  inspection  of 
flour  made  within  the  state.35  Both  of  these  statutes 
made  an  arbitrary  difference  between  the  state  in 
which  they  were  enacted  and  other  states,  and  that 
difference  did  not  exist  in  sanitary  conditions.  Another 
Virginia  statute  permitted  the  sale  of  meat  a  hundred 
miles  or  more  from  the  place  of  slaughter  only  after 
inspection  by  local  officers,  and  the  payment  of  fees 
therefor,  amounting  to  one  cent  per  pound.  This  was 
set  aside  as  unconstitutional  on  the  ground  that  the 
tax  was  so  onerous  as  to  be  practically  a  prohibition, 
and  it  was  therefore  an  interference  with  commerce, 
unjustifiable  on  sanitary  grounds.36 

§  253.  Authority  of  state  must  be  evident  in  the  act. 
Granting,  then,  that  the  state  has  full  authority  to  leg- 
islate for  the  preservation  of  health,  and  admitting 
that  it  is  the  duty  of  the  state  thus  to  protect  its  citi- 
zens, it  is  evident  that  the  statute  passed  must  clearly 
show  that  it  is  a  sanitary  measure,  in  purpose  and  in 

34  Minnesota  v.  Barter,  136  TJ.  36  Brimfher   v.   Rebman,    138   TJ. 

S.  313.  S.  78. 

35Voight   v.   Wright,    141   U.    S. 
62. 


328  PUBLIC    HEALTH   ADMINISTRATION 

operation.  It  will  not  do  for  the  state  to  attempt  to 
gain  a  commercial  advantage  under  the  cloak  of  sani- 
tation, though  evidently  commercial  advantage  may 
locally  accrue  from  the  enforcement  of  a  strictly  sani- 
tary provision;  but  such  commercial  advantage  must 
be  incidental  and  secondary  to  the  greater  object  of 
sanitation.  There  must  be  evident  a  need  for  the  enact- 
ment, and  the  means  used  must  be  reasonable,  and 
designed  to  attain  the  object  with  the  least  possible 
interference  with  commerce.  Even  a  statute  like  that 
prohibiting  the  importation  of  Texan  cattle  into  Mis- 
souri might  be  upheld  in  its  operation  if  its  enforce- 
ment were  limited  to  cases  of  actual  danger;  but  it 
would  manifestly  be  better  were  the  statute  so  drawn 
as  to  be  always  upheld,  thus  leaving  no  opening  for  the 
plea  that  its  execution  was  arbitrary. 

City 

§  254.  Relation  of  municipality  to  state.  The  gov- 
ernmental relationship  between  city  and  state  is  not 
at  all  analogous  to  that  existing  between  the  state  and 
the  nation.  The  city  has  no  powers  but  those  which 
are  expressly  given  it  by  the  state.  The  state  has 
received  nothing  of  authority  from  the  nation.  All 
power  originally  belongs  to  the  states,  in  our  theory. 
Certain  portions  of  this  power  were  ceded  by  the  states 
to  the  nation.  All  that  was  not  ceded  still  remains  to 
the  states.  Power  ceded  to  the  nation,  but  unused, 
may  sometimes  be  employed  by  the  state  until  the 
nation  gets  ready  to  act  in  the  matter.  On  the  other 
hand,  the  city  is  a  component  part  of  the  state,  and 
as  such  may  be  permitted  to  do  a  portion  of  the  work 
of  the  state,  under  the  direct  guidance  of  the  state.  A 


PUBLIC    HEALTH   POWERS   AND   LIMITATIONS  329 

limited,  or  subordinated  authority  over  certain  mat- 
ters is  delegated  by  the  state  to  the  city;  it  is  not  ceded. 
Such  authority  may  be  modified,  or  withdrawn  by  the 
state.  Certain  powers  belong  exclusively  to  the 
nation;  others,  to  the  state.  None  belongs  to  the  city, 
in  the  same  sense,  though  the  city  may  be  permitted  to 
use  a  portion  of  the  power  of  the  state. 

Neither  the  state  nor  the  nation  may  be  sued  en  tort. 
An  incorporated  city  may  be  sued  for  its  misdeeds  or 
nonaction.  Both  state  and  nation  are  supplied  with 
all  of  the  machinery  of  government.  The  city  is 
essentially  only  an  executive  organization.  It  has  not 
true  legislative  authority.  Its  common  council  may 
make  certain  rules  or  regulations,  prescribing  how  the 
affairs  of  the  city  may  be  conducted,  but  those  ordi- 
nances must  be  within  limits  prescribed  by  the  state, 
and  always  subject  to  nullification  by  the  state.  The 
nation  and  state  are  distinct  governmental  bodies.  The 
city  is  only  a  part  of  the  state.  These  distinctions  are 
real,  and  important,  though  often  overlooked. 

§  255.  City  corporation.  An  incorporated  city  bears 
a  duplex  character.  Territorially  it  is  a  portion  of  the 
state,  and  as  such  it  shares  with  unincorporated  towns 
and  villages  the  duty  of  preserving  state  laws,  and 
doing  its  part  of  the  state  business.  But  there  are 
certain  communal  interests  in  a  thickly  settled  section 
which  are  not  so  evident  in  the  country  at  large.  For 
example:  in  a  farming  district  the  economical  method 
of  furnishing  water  for  domestic  use  would  be  by  indi- 
vidual wells.  Each  owner  may  then  safeguard  the 
purity  of  his  own  supply.  In  the  city  wells  are  not 
safe;  they  are  always  a  source  of  danger.  The  safe 
way  is  to  have  a  general  supply,  often  carried  from 


330  PUBLIC    HEALTH   ADMINISTRATION 

some  distant  source.  As  a  commercial  proposition  it 
is  impossible  for  each  property  owner  to  manage  this 
business  for  himself.  The  supply  may  be  furnished 
by  a  commercial  company,  which  will  be  legally  and 
financially  responsible  for  any  damages  which  may 
result,  either  from  a  flooding  of  land,  through  a  break- 
age in  the  dams  or  conduits,  or  for  impurity  which 
produces  disease.  The  supply  of  water  for  that  indi- 
vidual city  is  not  fully  of  vital  interest  to  the  remain- 
der of  the  state.  The  farmer  must  dig  his  own  well, 
build  his  own  windmill  and  tank.  It  would  be  mani- 
festly unfair  to  require  that  he  also  contribute  for  the 
erection  and  maintenance  of  a  water  plant  in  a  distant 
city.  However,  the  residents  of  the  city  may  object 
to  contributing  unnecessarily  to  give  profits  to  the 
water  company.  Since  all  citizens  are  interested  in 
the  matter,  it  is  not  more  than  right  that  they,  and  not 
some  few  individuals,  perhaps  not  even  citizens,  should 
reap  the  financial  profits.  They  therefore  make  a 
public  corporation.  As  such  a  corporation  the  city 
comes  in  commercial  competition  with  individual  men 
and  business  corporations.  To  gain  certain  advan- 
tages the  citizens  incorporate.  Having  incorporated 
the  city  becomes  legally  responsible.  If  now  it  fur- 
nishes impure  water,  infected  with  disease,  damages 
may  be  assessed  in  court  for  resulting  injuries.37  The 
furnishing  a  city  with  water,  gas,  sewers,  etc.,  is  not 
strictly  governmental  in  character,  but  rather  com- 
mercial competition  with  private  enterprises.  The 
city  must  therefore  be  recognized  as  partially  govern- 

37  Milnes  v.  Huddersfield,  L.  E, 
10  Q.  B.,  Div.  124;  Keever  v.  Man- 
kato,  113  Minn.  55. 


PUBLIC    HEALTH    POWERS   AND    LIMITATIONS  331 

mental,  and  partially  as  any  other  corporation  doing 
business  for  commercial  profit. 

A  corporation  which  is  organized  ostensibly  to  man- 
ufacture some  given  article  of  farming  machinery 
would  hardly  be  upheld  in  conducting  a  general  mer- 
cantile business,  unless  it  amend  its  charter.  In  sell- 
ing the  farm  implements  the  corporation  might  accum- 
ulate notes,  mortgages,  and  bonds,  as  a  necessary  part 
of  the  business;  but  that  would  not  excuse  a  general 
dabbling  in  the  bond  market  as  brokers.  The  private 
corporation  is  permitted  to  do  only  that  for  which  it 
is  incorporated.  For  a  like  reason,  when,  to  gain 
special  advantage,  the  inhabitants  of  a  district  apply 
for  a  charter  as  an  incorporated  city,  they  do  so  for 
certain  specified  objects.  The  state  then  permits  them 
to  do  those  things  specified.  It  does  not  surrender 
authority,  but  in  return  for  corporate  privileges  the 
city  agrees  to  take  care  of  certain  local  governmental 
matters.  It  is  therefore  apparent  that  the  city  may  do 
anything  which  is  permitted,  or  specified  by  its  char- 
ter. It  must  not  attempt  to  pass  the  bounds  set  by 
the  charter,  either  as  to  subject,  territory,  or  degree  of 
authority. 

§  256.  Legislation.  It  is  a  general  rule  in  law  that 
work  which  is  ministerial  in  nature  may  be  executed 
by  a  deputy;  but  where  the  duties  require  the  exercise 
of  discretion  they  must  be  performed  by  the  officer 
selected  for  that  purpose.  Thus,  a  board  of  health  may 
not  delegate  to  a  committee  the  duty  of  employing  a 
physician.38  The  duty  of  enacting  the  laws  for  a  state 
resides  in  the  legislature,  or  general  assembly.    It  can- 

38  Young  v.  Blackhawk   County, 
66  Iowa,  460. 


332  PUBLIC   HEALTH   ADMINISTRATION 

not  shift  that  responsibility,  or  delegate  it  to  any  other 
officer,  or  governmental  body.  ' '  The  legislative  neither 
must  nor  can  transfer  the  power  of  making  laws  to 
any  body  else,  or  place  it  anywhere  but  where  the 
people  have. ' ' 39  The  legislature  may  not,  under  the 
general  rule,  delegate  its  law-making  power  to  munic- 
ipalities, though  the  state  constitution  may  make  pro- 
vision which  would  grant  that  transference  of  power, 
and  in  differences  in  interpretation  of  municipal  ordi- 
nances this  possibility  must  be  remembered.  Such  a 
possibility  is  suggested  by  the  supreme  court  of 
Minnesota  when  it  says:  "It  is  a  principle  not  ques- 
tioned, that  except  where  authorized  by  the  constitu- 
tion, as  in  respect  to  municipalities,  the  legislative 
power  *  *  *  can  not  confer  on  any  body  or  person  the 
power  to  determine  what  shall  be  law.  The  legisla- 
ture only  must  determine  this. ' ' 40 

There  cannot  be  two  independent  law  making 
authorities.  It  must  be  left  to  some  one  body  to  deter- 
mine what  shall  be  the  law.  However,  under  certain 
general  provisions  it  is  quite  reasonable  to  leave  to 
individual  communities  the  determination  as  to  how  a 
certain  problem  shall  be  met.  Thus,  the  legislature 
might  under  a  general  statute  forbid  the  sale  of  liquor 
in  any  city  which  shall  so  determine.  The  ordinance 
of  the  city  in  that  case  simply  puts  into  effect  the  state 
law.  It  is  itself  only  a  bylaw.  Ordinances  are  some- 
times called  laws,  and  their  passage  is  spoken  of  as 
legislation,  but  really  they  are  not  of  themselves  on  the 
same  footing  as  state  statutes.  The  state  legislature 
enacts  the  general  statute,  within  whose  limits  the  city 

as  Locke,   On   Civil   Government,  i0  State  v.  Young,  29  Minn.  551. 

Sec.  142. 


PUBLIC    HEALTH    POWERS   AND   LIMITATIONS  333 

determines  how  it  shall  be  administered.  This  is  the 
only  reasonable  way  in  which  much  of  police  power, 
especially,  may  be  fairly  administered.  The  stringent 
rules  which  may  be  necessary  for  the  city  may  often 
be  a  hardship  for  the  more  thinly  settled  community. 

The  density  of  a  city  population,  of  itself,  frequently 
makes  additional  requirements  necessary,  particularly 
in  matters  pertaining  to  public  health.  State  laws 
must  of  necessity  be  reasonable  for  the  entire  state; 
and  it  therefore  becomes  necessary  to  grant  to  munic- 
ipalities additional  powers.  It  has  sometimes  been 
held  that  both  the  state  and  municipality  may,  inde- 
pendently of  each  other,  pass  statutes  or  regulations 
upon  a  given  subject  and  that  the  ordinances  of  the 
city  will  be  sustained  unless  there  be  positive  conflict 
with  the  provisions  of  the  state  law.41  The  ruling  in 
Massachusetts  was  to  the  effect  that  the  authority  of 
the  city  will  be  sustained  in  the  absence  of  any  state 
law  upon  the  same  subject.42  In  a  case  in  Illinois  the 
supreme  court  said,  in  speaking  of  municipal  corpora- 
tions,43 ' '  The  necessity  for  their  organization  may  be 
found  in  the  density  of  the  population,  and  the  condi- 
tions incidental  thereto.  Because  of  this  the  municipal 
government  should  have  power  to  make  further  and 
more  definite  regulations  than  are  usually  provided  by 
general  regulation,  and  to  enforce  them  by  appropriate 
penalties."  Again  the  same  court  has  said:  "The 
most  important  of  police  powers  is  that  of  caring  for 
the  health  of  the  community,  and  that  is  inherent  in  a 

4i  City  of  Bellingham  v.  Cissna,  <3  Chicago    v.    Ice    Cream    Com- 

87  Pac.  481;  Ex  parte  Snowden,  12       pany,  252  111.  311. 
Cal.  App.  521. 

42  Commonwealth     v.      Newhall, 
205  Mass.  344. 


334  PUBLIC    HEALTH    ADMINISTRATION 

municipality,  and  may  be  exercised  whether  expressly 
granted  or  not,  because  the  preservation  of  the  health 
of  the  public  is  indispensable  to  the  existence  of  the 
municipal  corporation.,,43a  This  power  has  been  sus- 
tained in  the  case  of  milk,44  and  in  the  regulation  of 
the  manufacture  and  sale  of  bread.45  If  both  the  state 
and  the  city  legislate  upon  a  matter,  and  each  provide 
penalties  to  be  inflicted  in  case  of  violation  of  their 
regulation,  it  might  be  claimed  that  the  constitutional 
provision  relative  to  twice  being  in  jeopardy  for  the 
same  offence  might  be  violated.  So  far  as  I  have 
noticed,  however,  this  view  has  not  been  taken  by  the 
court,  but  the  violation  of  each  law  has  been  con- 
sidered a  misdemeanor  by  itself,  so  that  a  single  act 
may  practically  be  two  misdemeanors. 

§  257.  Ordinances  must  not  exceed  limits  of  statutes. 
Since  the  legislature  cannot  delegate  its  law  making 
power,  it  necessarily  follows  that  the  city  ordinance 
must  not  go  beyond  the  reasonable  meaning  of  the 
statute.  It  does  not  seem  that  a  statute  authorizing 
a  city  to  regulate  the  liquor  traffic  would  grant  the 
power  to  prohibit  the  same.  ' '  The  term  restraint  may 
be  used  to  designate  the  forbidding  and  punishing  of 
the  excess  or  abuse  of  liberty  or  property,  to  the  incon- 
venience or  injury  of  the  community ;  regulation  differs 
from  restraint  either  by  defining  a  precise  line  the  limit 
beyond  which  rights  may  not  be  exercised,  or  by  creat- 
ing positive  duties  which  without  the  statute  would 
have  no  existence;  by  prohibition  is  meant  the  forbid- 

43a  Gundling  v.  Chicago,  176  111.  45  Chicago    v.    Schmidinger,    243 

340,  348;   Ferguson  v.    Selma,   43       111.  167. 
Ala.  400. 

4*  Chicago  v.  The  Bowman  Dairy 
Company,  234  111.  294. 


PUBLIC    HEALTH    POWERS    AND    LIMITATIONS  335 

ding  of  acts  in  themselves  harmless  because  they  may 
be  carried  to  excess."46  The  power  to  regulate  or 
restrain  does  not  therefore  seem  to  give  the  power 
to  prohibit.47  Under  the  general  power  to  regulate, 
with  authority  to  restrict  the  sale  of  liquor  to  the  busi- 
ness portion,  the  city  ordinance,  defining  by  certain 
designated  streets  and  avenues  what  is  the  business 
portion,  is  prima  facie  binding,  though  it  is  admissible 
to  show  by  other  evidence  that  the  declaration  is  wrong- 
as  a  matter  of  fact.48  Note,  that  the  statute  under 
which  this  ordinance  was  passed  restricts  the  sale  to 
the  business  portion,  and  does  not  specifically  give  to 
the  city  the  determination  of  what  shall  be  so  termed. 
The  city  ordinance  does  not  extend  the  scope  of  the 
law,  unless  as  a  matter  of  fact  it  includes  in  the  speci- 
fied territory  a  portion  which  may-  not  properly  be 
called  business  portion.  If  it  does  this  it  is  an  exercise 
of  legislative  authority,  and  therefore  unconstitutional 
and  void.  In  California  the  general  power  to  "make 
and  enforce  within  its  limits  all  such  local,  police,  sani- 
tary, and  other  regulations  as  are  not  in  conflict  with 
general  laws, ' ' 49  has  been  held  to  place  the  liquor 
traffic  entirely  within  local  control,  even  to  the  extent 
of  absolute  prohibition.50  Likewise  in  Alabama  the 
power  to  restrain  has  been  held  to  include  the  power 
to  prohibit.51 

The  operation  of  the  city  ordinance  must  not  reach 
beyond  the  limits  of  the  city,  though  it  may  do  so 

46  Freund,  Police  Power,  28.  *8  Rowland    v.    Greencastle,    157 

*7  Milliken    v.    Weatherford,    54  Ind.  707. 

Tex.  388,   in  which  an  ordinance,  *s>  Constitution,     Cal.     Act.     XI, 

passed  under  the  authority  to  reg-  Sec.  11. 

ulate,  and  prohibiting  the  renting  so  Ex  parte  Campbell,  74  Cal.  20. 

of  bouses  to  lewd  women,  was  de-  si  Town  of  Marion  v.  Chandler, 

clared  void.  6   Ala.   899. 


336  PUBLIC    HEALTH    ADMINISTRATION 

indirectly.  The  prohibition  of  the  bringing  into  town 
for  sale  secondhand  clothing  without  proof  of  nonin- 
fection  has  been  held  as  an  unwarranted  interference 
with  trade.52  Such  an  ordinance  is  really  legislation, 
affecting  parties  without  the  jurisdiction  of  the  city. 
It  is  also  unreasonable.  Were  there  evidence  of  special 
danger,  or  were  the  ordinance  so  general  as  to  require 
the  evidence  of  noninfection  for  all  secondhand  cloth- 
ing offered  for  sale,  it  would  doubtless  have  been  sus- 
tained. As  it  was  it  put  a  special  burden  upon  non- 
residents. 

A  general  authority  granted  to  control  infectious 
disease,  while  sufficient  to  warrant  a  general  vaccina- 
tion in  the  presence  of  an  epidemic,  does  not  warrant 
the  passage  of  an  ordinance  requiring  that  all  children 
be  excluded  from  school  in  the  absence  of  an  epidemic 
until  they  present  evidence  of  successful  vaccination.53 
Such  an  ordinance  went  beyond  the  reasonable  author- 
ity of  the  city  in  the  matter,  and  consisted  in  real 
legislation — putting  special  requirements  for  admis- 
sion to  the  public  schools.  The  schools  of  the  city  were 
only  a  portion  of  those  in  the  state,  all  being  under 
certain  general  laws.  To  enforce  the  vaccination 
requirement  upon  the  scholars  in  one  city  would  be 
to  open  the  way  for  all  kinds  of  different  stipulations 
as  to  schools,  and  to  bring  chaos  into  the  educational 
system  of  the  state.  Only  the  legislature  has  authority 
to  pass  that  legislation. 

The  proper  disposal  of  garbage  in  a  city  becomes 
often  an  important  sanitary  problem.  A  general  sani- 
tary authority  will  enable  the  municipality  to  make 

52  Kosciusko    v.     Stomberg,     68  53  Jenkins   v.   Board   of   Educa- 

Miss.  469;   Freund,  Police  Power,       tion,  234  111.  427. 
142. 


PUBLIC    HEALTH    POWERS    AND   LIMITATIONS  337 

rules  and  ordinances  specifying  how  the  garbage  shall 
be  kept,  and  how  collected ;  but,  unless  specially  author- 
ized by  the  charter,  or  statute,  the  city  may  not  create 
a  monopoly,  nor  take  property  of  citizens.54  "Since 
all  the  powers  of  a  corporation  are  derived  from  the 
law  and  its  charter,  it  is  evident  that  no  ordinance  or 
bylaw  of  a  corporation  can  diminish,  or  vary  its 
powers."55  The  power  to  change  a  salary  does  not 
include  the  right  to  abolish  it  altogether.50  Neither 
does  the  power  to  legislate  relative  to  hucksters  imply 
the  authority  to  include  under  that  term  "any  person 
not  a  fanner  or  butcher  who  should  sell,  or  offer  for 
sale  any  commodity  not  of  his  own  manufacture,"  for 
no  municipality  has  authority  under  its  franchise  to 
change  the  ordinary  meaning  of  English  words.57 

§258.  Authority  may  be  general,  specific,  or  im- 
plied. The  authority  under  which  a  city  enacts  ordi- 
nances may  be  in  general  terms,  or  specific  in  character, 
or  simply  implied.  ' '  The  power  to  make  by-laws,  when 
not  expressly  given,  is  implied  as  an  incident  to  the 
very  existence  of  a  corporation;  but  in  the  case  of  an 
express  grant  of  the  power  to  enact  by-laws  limited 
to  certain  specified  cases  and  for  certain  purposes,  the 
corporate  power  of  legislation  is  confined  to  the  objects 
specified,  all  others  being  excluded  by  implication."  58 
Where  the  grant  of  power  is  specific,  the  city  may  not 
exceed  the  specific  limits.    Where  the  power  is  gen- 

54Landberg  v.  Chicago,  237  111.  349;    Garden    City   v.    Abbott,    34 

112;    Chicago   v.    Eumpff,    45    111.  Kan.  283,  etc. 

90.  5G  State    v.    Nashville,    15    Lea, 

55  Dillon,      Municipal      Corpora-  697. 

tions,    317 ;     citing    Thompson    v.  57  Mays    v.    Cincinnati,    1    Ohio, 

Carroll,  22  How.  242;   Andrews  v.  268. 

Insurance      Co.,      37      Me.      256;  ss  Sawyer,   J.,   in   State   v.   Fer- 

Thomas    v.    Eichmond,     12    Wall.  guson,  33  N.  H.  424,  430. 


338  PUBLIC    HEALTH   ADMINISTRATION 

eral,  anything  may  be  done  which  is  not  repugnant 
to  the  constitution  or  the  statutes,  in  letter  or  in  spirit. 
Where  certain  general  authority  is  given,  and  specific 
mention  is  made  of  certain  subjects,  the  general  power 
does  not  permit  an  enlarged  authority  over  the  specific 
subjects.  A  power  to  pass  ordinances  to  ' '  improve  the 
morals  and  order"  of  the  people  does  not  authorize  an 
ordinance  to  punish  the  offence  of  keeping  a  house  of 
ill-fame  according  to  a  decision  in  Iowa.59  No  expres- 
sion of  authority  would  permit  the  city  to  go  beyond 
the  provisions  of  the  constitution  or  statutes,  and  the 
municipality,  being  a  child  of  the  state,  cannot  do  that 
which  would  be  prohibited  to  the  state  legislature. 
The  authority  given  to  a  city,  by  which  it  may  require 
a  license  from  peddlers  or  trade  solicitors,  is  valid 
when  applied  to  matters  wholly  within  the  state, 
but  it  is  void  as  applied  to  a  solicitor  for  interstate 
trade.00  The  state  legislature  had  not  this  power  over 
interstate  commerce;  and  because  it  did  not  have  it, 
the  state  could  not  have  given  that  authority  in  the 
general  grant  to  the  city.  Because  state  statutes  must 
be  reasonable,  the  state  cannot  give  to  the  city 
authority  to  pass  an  ordinance  making  unreasonable 
requirements.  An  ordinance  which  subjects  the  citi- 
zens to  the  will  or  judgment  of  a  given  executive 
officer  without  special  restraints,  is  deemed  unreason- 
able. It  is  liable  to  abuse,  and  to  be  used  for  oppres- 
sion of  individuals.61  It  is  to  avoid  this  danger  that 
Eaton,  in  his  Government  of  Municipalities,62  argued 
that  health  administration  should  always  be  by  a  board 

59  Chariton  v.  Barber,  54  Iowa,  si  Baltimore  v.  Badecke,  49  Md. 

360.  217. 

eo  Caldwell    v.    North  Carolina,  «2  p.  407. 

187  U.   S.   622. 


PUBLIC    HEALTH    POWERS    AND   LIMITATIONS  339 

of  health.  In  his  argument,  however,  he  failed  to 
recognize  that  administration  to  be  effective  must  be 
immediate,  and  that  efficiency  is  always  weakened  by 
division  of  responsibility.  He  seems  further  to  ignore 
the  fact  that  this  executive  branch  of  government  has 
no  legislative  authority,  and  can  have  none. 

§  259.  Ordinance  must  not  contravene  common 
rights.  Unless  the  power  be  distinctly,  and  specifically 
granted,  either  in  the  constitution,  charter,  or  statutes, 
the  city  cannot  pass  an  ordinance  which  contravenes 
common  rights.  A  man  has  a  common  right  to  rent 
his  property  to  whomsoever  he  may  choose.  If  he  rent 
to  undesirable  tenants  he  works  an  injury  upon  the 
surrounding  property  owners.  If  the  property  be  used 
for  immoral  purposes  it  is  a  menace  to  the  morals 
and  health  of  the  community.  It  seems  highly  desir- 
able, therefore,  that  he  should  be  prohibited  from  rent- 
ing to  lewd  women.  Such  an  ordinance  would  be  a 
good  use  of  the  police  power,  but  the  power  to  regu- 
late the  business  does  not  give  authority  for  the  pas- 
sage of  an  ordinance  prohibiting  such  rental.63  Every- 
one, according  to  the  laws  of  some  of  the  states,  has  a 
common  right  to  fish  in  navigable  waters.  A  city  may 
make  ordinances  regulating  fisheries,  but  unless 
specifically  granted,  there  is  no  authority  for  an  ordi- 
nance which  prohibits  fishing  within  the  city  limits.64 
While  under  the  general  sanitary  power  it  might  be 
lawful  to  prohibit  all  fisheries  within  the  city  limits, 
such  sanitary  control  would  not  warrant  the  arbitrary 
selection  of  one  class  for  prohibition,  and  another  for 

63  Milliken    v.    Weatherford,    54  (Conn.)    22;    Willard    v.    Killing- 

Tex.  388.  worth,    8    Conn.    247;    Classon    v. 

e*  Hayden    v.    Noyes,    5    Conn.  Milwaukee,  30  Wis.  316. 
391 ;    Peek    v.    Lockwood,    5    Day 


340  PUBLIC    HEALTH   ADMINISTRATION 

permission.  Such  an  ordinance  is  therefore  open  to 
the  charge  of  arbitrariness,  as  well  as  that  it  contra- 
venes common  rights.  When  there  is  no  common  right 
an  ordinance  will  not  be  declared  void  which  prohibits 
a  special  class  from  doing  a  certain  act.  No  one  has 
a  common  right  to  slaughter  animals  in  the  street. 
An  ordinance  which  prohibits  such  slaughtering  by 
butchers  is  not  therefore  arbitrary,  nor  does  it  con- 
travene common  rights.65  A  municipal  contract  giv- 
ing exclusive  rights  and  franchises  by  a  city  is  void, 
otherwise  than  in  the  exercise  of  the  police  power  of 
the  city.66  But  under  the  police  power  a  contract  for 
the  exclusive  right  to  clear  and  dispose  of  the  garbage 
of  a  city  has  been  declared  not  an  illegal  monopoly.67 
' '  While  ordinances  which  unnecessarily  restrain  trade 
or  operate  oppressively  upon  individuals  will  not  be 
sustained,  yet  such  as  are  reasonably  calculated  to  pre- 
serve the  public  health  are  valid  although  they  may 
abridge  individual  liberty  and  individual  rights  in 
respect  to  property. ' ' 68  On  this  ground  an  ordinance 
in  a  populous  city,  prohibiting  the  purchasing  of  car- 
casses of  animals  for  boiling,  steaming,  and  rendering, 
and  the  rendering  of  the  same  within  the  city,  except 
in  certain  enumerated  cases,  and  under  specified  condi- 
tions, was  sustained  as  reasonable.69  An  ordinance 
conferring  upon  one  person  the  right  to  remove  and 
convert  to  his  own  use  dead  animals,  to  the  exclu- 
sion of  the  owner's  rights,  was  held  to  be  an  uncon- 

65  City     Council    v.     Ahrens,     4  Mich.  570;  State  v.  Orr,  68  Conn. 

Strob.    (S.  C.)    241;    City  Council  101. 

v.  Baptist   Church,   4  Strob.   306;  68 Dillon,    Mun.    Corp.    326,    ap- 

Peoria  v.  Calhoun,  29  111.  317;  St.  proved    in    State    v.    Holcomn,    68 

Paul  v.  Colter,  12  Minn.  41.  Iowa,      107;      Commonwealth      v. 

ee  Long  v.  Duluth,  49  Minn.  280.  Patch,  97  Mass.  221. 

67  Grand  Eapids  v.  DeVries,  123  69  state  v.  Fischer,  52  Mo.  174. 


PUBLIC    HEALTH    POWERS   AND   LIMITATIONS  341 

stitutional  taking  of  private  property  without  compen- 
sation, and  also  a  deprivation  of  property  without  due 
process  of  law.70  McGehee  holds 71  that  "the  property 
interests  in  the  noxious  materials  must  be  subordinated 
to  the  general  good."72  While  this  is  true  as  to 
state  legislation  it  is  not  true  as  to  the  right  of  a  city  to 
enact  ordinances  unless  that  authority  be  distinctly 
given.  It  is  in  such  cases  that  misunderstandings  arise 
as  to  conflicts  in  decisions. 

The  general  principles  of  this  problem  have  been 
thus  very  well  stated  by  Professor  Freund : 73  "Under 
the  principle  of  local  self  government  local  authorities 
cannot  be  vested  with  powers  necessarily  exceeding 
their  territorial  jurisdiction;  those  matters  therefore 
which  equally  affect  the  people  of  the  state  at  large, 
and  cannot  be  confined  locally,  must  be  reserved  to  the 
state  legislature.  Moreover,  the  inauguration  of  a 
novel  policy  in  matters  of  safety  and  health,  the  pro- 
hibition of  articles  of  consumption,  possibly  but  not 
undoubtedly  injurious  to  health,  the  establishment  of 
monopolies,  the  restriction  of  the  right  to  pursue  estab- 
lished avocations,  may  under  circumstances  be  con- 
ceded to  the  legislature  of  the  state,  but  cannot  be 
introduced  by  local  authorities  under  mere  general 
grants  of  power."  In  a  similar  strain  the  supreme 
court  of  Georgia  said,  relative  to  a  health  ordinance : 74 
"The  city  council  is  restrained  to  such  matters, 
whether  specially  enumerated  or  included  under  gen- 

70  River  Rendering  Co.  v.  Behr,  S.  306;  Gardner  v.  Michigan,  199 

77  Mo.  91;   Landberg  v.  Chicago,  U.  S.  325. 

237  111.  112.  73  Police  Power,  142. 

7i  Due  Process  of  Law,  p.  336.  74  Dubois  v.  Augusta,  Dudley  R. 

72  Citing     California     Reduction  30. 
Co.  v.  Sanitary  Bed  Works,  199  U. 


342  1UBLIC   HEALTH   ADMINISTRATION 

eral  grant,  as  are  indifferent  in  themselves,  snch  mat- 
ters as  are  free  from  constitutional  objection,  and 
have  not  been  the  subject  of  general  legislation;  or,  as 
it  is  expressed  in  the  charter,  are  not  repugnant  to 
the  constitution  or  laws  of  the  land." 

§  260.  State  may  do  what  the  city  may  not.  From 
the  foregoing  it  is  evident  that  the  state  may  do  that 
which  is  not  permitted  to  the  ordinance  making  power 
of  the  city.  There  are  many  problems  in  the  public 
health  work  which  are  designated  as  questions  of 
public  policy.  Public  policy  is  not  decided  according 
to  the  opinion  of  an  individual,  nor  by  the  consensus 
of  the  inhabitants  of  a  given  city.  It  is  of  broader 
signification,  and  must  be  settled  according  to  the  con- 
sensus of  opinion  in  each  unit  of  government  having 
the  police  power;  and  that  unit  is  the  state.  The 
opinion  is  expressed,  not  by  the  executive,  nor  by  the 
judicial  branches,  but  by  the  legislature.75  "The  best 
indications  of  public  policy  are  to  be  found  in  the  enact- 
ments of  the  legislature.  To  say  that  such  a  law  is  of 
unusual  tendency  is  disrespectful  to  the  legislature, 
who,  no  doubt,  designed  to  promote  the  morals  and 
health  of  the  citizens.  Whether  the  ordinance  in  ques- 
tion is  calculated  to  promote  the  object  is  a  question 
with  which  the  courts  have  no  concern, ' ' 76  when  the 
legislative  will  has  been  clearly  expressed.  "Courts  of 
last  resort  *  *  *  would  have  no  means  of  ascer- 
taining whether  it  was  a  collusive  case  or  not,  or 
whether  the  weight  of  evidence  was  in  accord  with  the 
truth.  *  *  *  The  legislature  in  determining  upon 
the  passage  of  the  law  may  make  investigations  which 

75  License    Cases,    5    Wall.    462,  76  State    v.    Clarke,    54    Mo.    17, 

■  475.  36. 


PUBLIC    HEALTH   POWERS   AND   LIMITATIONS  343 

the  court  cannot."77  The  conclusiveness  of  the  legis- 
lative judgment  as  to  the  necessity  or  wisdom  of  a 
sanitary  measure  is  strongly  insisted  upon  in  the  mat- 
ter of  compulsory  vaccination  by  the  supreme  court 
of  Georgia.78  "With  the  wisdom  of  vaccination  we 
have  nothing  to  do.  *  *  *  The  legislature  has  seen 
fit  to  adopt  the  opinion  of  those  scientists  who  insist 
that  it  is  efficacious  and  that  is  conclusive  upon  us." 

§  261.  Ordinance  not  unreasonable  if  authorized  by 
state.  When  authority  is  specifically  granted  in  the 
charter,  or  by  the  laws  of  the  state,  an  ordinance  passed 
within  the  authority  cannot  be  deemed  unreasonable.79 
If  the  ordinance  complies  with  the  authorization,  but 
exceeds  the  limits  of  constitutional  rights,  the  act  of 
the  state  granting  the  authority  must  be  attacked, 
rather  than  the  ordinance.  Though  ordinarily  it  is 
contrary  to  public  policy  to  grant  monopolies,  and 
though  an  ordinance  creating  a  monopoly  would  gen- 
erally be  declared  void  on  that  account,  the  state  has 
the  authority  under  its  police  power  to  grant  to  the 
city  such  jurisdiction  for  the  preservation  of  health. 
Under  such  conditions  an  ordinance  granting  a 
monopoly  in  the  matter  of  the  collection  of  manure 
and  garbage  was  upheld.80  This  ordinance  also  disre- 
garded the- property  rights  in  the  matter  of  ownership. 

§  262.  Executive  authority  depends  upon  legislative. 
As  executive  authority  must  ordinarily  be  derived 
from  legislative  action,  it  necessarily  follows  that 
under  such  conditions  the  executive  is  thus  limited 

77  People  v.  Smith,  108  Mieh.  79  Coal  Float  Co.  v.  City  of  Jef - 
527;  also  see  State  v.  Main,  69  ferson,  112,  Ind.  15;  Cooley,  Const. 
Conn.   123.  Lim.  241. 

78  Morris  v.  Columbus,  102  Ga.  so  Walker  v.  Jameson,  140  Ind. 
792.  591. 


344  PUBLIC    HEALTH   ADMINISTRATION 

to  such  powers  as  are  granted.  This  means  that  the 
authority  for  a  municipal  officer  is  found  either  under 
the  general  laws  of  the  state,  in  the  charter,  or  in  the 
enactments  of  the  city  itself.  Under  the  police  power, 
however,  the  health  officer  may  sometimes  lawfully  do 
that  which  the  city  may  not  direct  or  authorize  by  a 
general  ordinance.  The  fact  that  during  a  small-pox 
epidemic  a  health  officer  might  very  properly,  and 
lawfully  insist  upon  a  general  vaccination,  is  no 
authority  for  the  passage  of  an  ordinance  requiring 
general  vaccination.81  In  the  presence  of  yellow  fever 
the  sanitary  officer  might  very  properly  arrest  with- 
out warrant,  and  hold  without  trial,  a  person  whom  he 
suspected  of  having  been  exposed  to  the  bites  of 
infected  mosquitoes.  The  warrant  for  such  executive 
action  must  be  found  in  the  dictum  of  Salus  populi. 
The  check  upon  the  officer  to  prevent  excess  of  action, 
and  the  working  of  injustice,  is  found  in  personal  lia- 
bility. Such  summary  administrative  measures  would 
not  be  tolerated  except  in  extreme  emergency.  The 
officer  who  attempts  to  use  such  measures  under  ordi- 
nary conditions  will  hardly  be  sustained  by  the  court. 
In  such  a  course  under  ordinary  conditions  he  would 
not  show  official  authority  so  much  as  arbitrary  or 
autocratic  assumption  of  power,  and  it  would  not  be 
unlikely  that  he  might  be  assessed  heavy  personal 
damages. 

A  village  board  of  health  is  purely  a  creature  of 
statute.  It  has  only  such  powers,  and  may  use  only 
such  methods,  as  may  be  provided  by  statutory  enact- 
ment.   Although,  having  been  created,  the  board  may 

si  Jenkins   v.    Board    of    Educa- 
tion, 234  111.  422. 


PUBLIC    HEALTH    POWERS   AND   LIMITATIONS  345 

be  expected  to  improve  the  general  sanitary  condition 
of  the  community,  still  it  must  use  only  such  modes  of 
operation  as  are  clearly  given.  In  the  absence  of  such 
distinct  authority,  an  attempt  to  impose  penalties  for 
violations  of  its  orders,  and  to  collect  the  same,  would 
be  a  deviation  from  recognized  course  of  action,  and 
as  such  it  would  be  void.  The  accused  might  very 
properly  take  advantage  of  such  excess  of  authority.82 

82  Carthage  v.  Colligan,  144  N. 
Y.  Supp.  468;  Case  of  Bonham,  8 
Coke,  107a. 


CHAPTER  X 


OFFICERS 


§  263.  Importance   of  the   subject. 

§  264.  Executive  department  com- 
posed of  officers  and  em- 
ployees. 

§  265.  Office  and  employment  dis- 
tinguished. 

§  266.  Offices  not  dependent  upon 
statutes. 

§  267.  Honorary  office. 

§  268.  Lucrative   office. 

§  269.  Classification  according  to 
service. 

§  270.  Ministerial  or  discretionary 
duties. 

§  271.  Discretion  implies  free  use 
of  judgment. 

§  272.  Discretionary  power  cannot 
be  delegated. 

§  273.  Arbitrary  action  not  discre- 
tion. 

§  274.  Officers  with  discretion  can- 
not be  coerced. 

§  275.  Discretionary  decision  not 
subject   of  purchase. 

§  276.  Public  and  private  officers. 

§  277.  State  versus  municipal  of- 
ficers. 

§  278.  State  officers  proper. 

§  279.  Officers  de  jure  and  de 
facto. 

§  280.  No  office  de  facto. 

§  281.  Determination  of  title  to 
office. 

§  282.  Appointment  to  office. 

346 


284. 

285. 

286. 

287. 

288. 

289. 

290. 
291. 

292. 


§293. 
§294. 
§295. 
§296. 
§297. 
§298. 

§299. 

§300. 
§301. 


Appointment  by  same 
branch    of   government. 

Appointment  by  non-official 
body. 

Power  to  appoint  must  be 
given  by  law. 

Municipal  or  board  appoint- 
ments. 

Appointment  implies  writ- 
ten commission. 

Commission  is  evidence  of 
appointment. 

Commission  best  evidence 
of   appointment. 

Time  for  appointment. 

Appointments  requiring  con- 
firmation made  during 
recess. 

Eecess  appointments  must 
be  submitted  for  con- 
firmation. 

Time   for   which   appointed. 

Vote  must  show  approval. 

Action  of  majority. 

Vote  need  not  show  quorum. 

Sufficiency  of  notice. 

Appointment  by  two  or 
more  bodies. 

Appointive  power  once  used 
is  exhausted. 

Appointment  of  self. 

Appointments  by  outgoing 
officers. 


OFFICERS 


347 


§  302.  Municipal  authority  to  cre- 
ate offices  and  make  ap- 
pointments. 

§  303.  Appointment  of  two  or  more 
for  unspecified  class  or 
district. 

§  304.  Officers  of  health  appointed, 
not  elected. 

§  305.  Eligibility  for  appointment, 
citizenship. 

§  306.  Natural   qualifications. 

§  307.  Educational    qualifications. 

§  308.  Legislative  restrictions. 

§  309.  Holding  two  offices. 

§  310.  Civil   service. 

§  311.  Acceptance  of  office. 

§312.  Taking  office. 

§  313.  Taking  receipts  from  suc- 
cessor in  office. 

§  314.  Term  of  office. 

§  315.  No  term,  office  held  at 
pleasure. 

§  316.  Term  fixed  by  constitution. 

§  317.  Holding  over  term. 

§  318.  Appointments  to  fill  vacan- 
cies. 

§  319.  When  term  begins. 

§  320.  Compensation  for  service — 
office  not  a  contract. 

§  321.  Importance  of  salary  in 
health  service. 

§  322.  Inadequate  salaries  expen- 
sive. 

§323.  "Office"  of  wider  signifi- 
cance than  ' '  officer. ' ' 

§324.  Officer's  compensation  de- 
termined by  legislation. 

§  325.  Constitutional  prohibition  of 
change  of  salary  during 
term. 

§  326.  When  compensation  may  be 
fixed    after    appointment. 

§  327.  Effect    of    increased    duties. 

§  328.  Payment  of  substitute  for 
extra  service  not  permis- 
sible. 

§  329.  Extra    official    duties. 


§  330.  Compensation  for  two  of- 
fices. 

§  331.  Compensation  depends  upon 
actual  service. 

§  332.  Second  term  presupposes  old 
rate. 

§  333.  Abolition  of  office  stops 
compensation. 

§  334.  Dissatisfied  officer  may  re- 
sign. 

§  335.  Original  bond  covers  extra 
duties. 

§  336.  Officer  can  not  pay  self. 

§  337.  Unearned  salary  not  assign- 
able. 

§  338.  Officers '  salaries  are  not 
subject  to  garnishee. 

§  339.  Termination  of  official  re- 
lation. 

§340.  Death. 

§  341.  Abolition  of  office. 

§  342.  Expiration    of    term. 

§  343.  When  an  officer  may  not 
hold  over. 

§  344.  Abandonment  of  office.  Fail- 
ure to  qualify. 

§  345.  Abandonment  after  qualifi- 
cation. 

§  346.  Malfeasance. 

§  347.  Nonuser  as  cause  of  for- 
feiture. 

§  348.  Eefusal  to  perform  the  du- 
ties of  the  office. 

§  349.  Acceptance  of  incompatible 
office. 

§  350.  Eesignation. 

§  351.  Power  of  removal  is  inci- 
dental to  that  of  appoint- 
ment. 

§  352.  Conditions  for  removal  fixed 
in  the  Constitution. 

§  353.  Statutory  requirements  for 
removal. 

§  354.  What  is  not  removal. 

§  355.  Power  to  remove  does  not 
include  power  to  suspend. 

§  356.  Impeachment. 


348  PUBLIC    HEALTH   ADMINISTRATION 

§  263.  Importance  of  the  subject.  From  the  public 
health  standpoint,  the  most  important  branch  of  gov- 
ernmental work  is  the  executive.  It  is  in  this  field 
that  problems  are  first  met.  The  executive  must  make 
the  first  decisions.  He  collects  the  evidence  upon  which 
legislation  must  be  based.  He  carries  into  effect  the 
orders  of  the  state  as  expressed  in  legislation.  Very 
much,  therefore,  depends  upon  the  character  of  the 
men  in  the  executive  work  of  preserving  the  public 
health.  Most  intimately  related  with  the  character  of 
the  service  we  find  such  questions  as :  Who  arfc  officers  f 
What  makes  them  officers?  What  are  the  duties  and 
liabilities  of  officers'? 

Strange  as  it  may  seem,  it  sometimes  happens  that 
men  accept  the  responsibilities  of  office  with  only  a 
very  hazy  idea  as  to  what  their  acceptance  may  imply, 
further  than  the  right  to  regularly  receive  a  check 
for  services  rendered,  or  neglected.  Because  the  ques- 
tions do  not  frequently  come  to  the  attention  of  trial 
lawyers,  it  happens  that  even  well  informed  attorneys 
are  by  no  means  clear  as  to  what  is  legal,  and  what  is 
not.  This  is  shown  from  a  case  mentioned  in  this 
chapter  in  which  a  well  known  attorney,  with  extensive 
experience,  when  elected  to  a  responsible  position, 
tried  twice,  with  honesty  of  purpose,  to  make  an  illegal 
appointment,  though  in  the  meantime  he  had  neg- 
lected an  opportunity  to  make  the  same  appointment 
legally. 

§  264.  Executive  department  composed  of  officers 
and  employees.  Executive  departments  are  composed 
of  officers  and  employees,  or  agents.  This  distinction 
may  not  always  be  important,  particularly  as  to  rela- 
tions with  the  public;  but  to  the  individual  exercising 


OFFICERS  349 


the  authority  it  may  be  very  important  to  determine 
his  position.  Upon  the  answer  to  the  question  whether 
he  be  an  officer  or  agent  may  depend  his  right  to  his 
position,  and  the  amount  of  his  compensation.  Neither 
are  officers  all  upon  the  same  footing.  Some  are 
elected,  and  others  are  appointed.  Since  the  members 
of  departments  of  health  in  this  country  are  seldom, 
or  never,  elected,  further  special  consideration  of  elec- 
tive offices  will  be  but  lightly  touched.  As  health 
executives,  we  are  chiefly  interested  in  laws  relating 
to  elective  officers  simply  because  they  make  appoint- 
ments. The  sovereign  power  resides  in  the  people. 
They  unite  in  election  to  collect  the  authority  into  the 
hands  of  a  few  individuals.  The  people  temporarily 
resign  their  authority  to  the  elected  officer.  The 
elected  officer  having  received  this  authority,  appoints 
either  alone,  or  with  the  concurrence  of  other  officers, 
subordinate  officers  to  look  after  specified  portions  of 
the  governmental  business.  Officers  employ  additional 
assistance,  and  the  individuals  so  engaged  are  not 
officers,  but  employees  or  agents.  Appointive  officers 
and  employees  are  not  responsible  to  the  sovereign 
people,  but  to  the  superior  officer,  or  officers  by  whom 
they  were  appointed.1 

As  we  have  attempted  to  show  in  Chapter  IV,  effi- 
ciency is  closely  related  to  complete  organization,  and 
complete  organization  implies  that  the  entire  executive 
department,  or  branch,  is  centered  in  one  head,  to 
whom  ultimately  every  subordinate  officer  and 
employee  is  responsible.  Efficiency  means  the  prompt, 
economic  transaction  of  the  affairs  of  the  government. 
Simplicity  and  perfection  of  the  organization,  with  its 


i  See  Wyman,  Ad.  Law,  46. 


350  PUBLIC    HEALTH   ADMINISTRATION 

graduated  positions,  is  of  vital  importance  from  every 
point  of  view.  In  proportion  to  the  size  of  the  govern- 
mental department  we  find  that  the  proportion  of 
employees  to  officers  is  increased,  and  the  line  is  not 
always  easily  drawn  between  the  two  classes. 

§265.  Office  and  employment  distinguished.  "An 
officer  is  a  public  agent;  the  employee  is  a  private 
agent."2  "The  most  important  characteristic  which 
distinguishes  an  office  from  an  employment  or  contract 
is  that  the  creation  and  conferring  of  an  office  involves 
a  delegation  to  the  individual  of  some  of  the  sovereign 
functions  of  government,  to  be  exercised  by  him  for 
the  benefit  of  the  public;  that  some  portion  of  the 
sovereignty  of  the  country,  either  legislative,  executive, 
or  judicial,  attaches,  for  the  time  being,  to  be  exercised 
for  the  public  benefit.  Unless  the  powers  conferred 
are  of  this  nature  the  individual  is  not  a  public 
officer. ' ' 3 

There  are  exceptions  to  almost  every  other  distin- 
guishing characteristic  of  an  office.  Ordinarily  an 
office  depends  upon  enactment  for  its  status,  and  this 
enactment  may  be  found  in  the  constitution  or  in  the 
statute  of  a  legislature.  The  act  creating  the  office 
generally  states  how  the  office  is  to  be  filled;  the  term 
of  appointment  or  election,  or  whether  it  be  at  the 
will  of  the  appointing  power;  sometimes  it  fixes  the 
salary  or  compensation  to  be  received  by  the  holder; 
always  it  defines  the  duties  pertaining  to  the  position. 
Generally,  it  will  be  noticed  that  the  office  is  perma- 

2Wyman,  A3.  Law,  42.  S.  v.  Mouat,  124  IT.  S.  303;  and 

s  Mechem,  Pub.  Officers,  4 ;   cit-  several  others.     Also  Wyman,  Ad. 

ing  Bunn  v.   People,  45  111.   397;  Law,     43;      Throop,     Pub.     Off., 

U.  S.  v.  Germaine,  99  U.  S.  508;  Chap.  1. 

U.  S.  v.  Smith,  124  U.  S.  525;  U. 


OFFICERS  351 

nent,  at  least  until  abolished  by  subsequent  legislation, 
though  the  incumbent  may  be  changed  at  short  inter- 
vals of  time.  As  distinguished  therefrom,  an  agency 
or  employment  is  frequently  self  limited.  The  employ- 
ment ends  when  the  duty  or  contract  has  been  per- 
formed. The  duties  are  not  fixed  by  statute.  The 
holder  of  the  position  is  never  elected.  An  employ- 
ment may  be  continuous, — renewed  each  pay  day,  but 
the  position  is  indefinite  as  to  permanence,  and  char- 
acter. The  Ohio  supreme  court  has  said  that  where 
the  powers  and  duties  of  a  public  nature  are  required 
by  the  law  of  the  state,  and  where  the  state  law  also 
fixes  the  character  of  the  individual  authorized  to  per- 
form those  duties,  he  holds  an  office.4 

Perhaps  the  distinction  between  office  and  employ- 
ment may  be  better  appreciated  by  illustration.  Sup- 
pose that  under  the  general  powers  granted  in  charter 
and  statutes,  a  city  should  appoint  a  health  officer, 
or  commissioner  of  health,  his  duties  being  specified 
in  state  statutes  and  municipal  ordinances.  Suppose 
that  a  city  ordinance  makes  provision  for  the  appoint- 
ment of  a  physician  to  treat  the  destitute  sick  within 
the  city,  and  other  city  charges.  In  each  case,  accord- 
ing to  the  ordinances  the  appointment  is  to  be  for  one 
year.  "While  in  the  determination  of  the  question 
whether  these  two  positions  are  offices  or  employ- 
ments, much  will  depend  upon  the  exact  wording  of 
the  enactments.  On  general  principles  we  should  ex- 
pect the  health  commissionership  to  be  declared  an 
office,  and  the  other  an  employment.  The. work  of 
the  one  is  directly  governmental,  as  a  part  of  the  state 

*  State  ex  rel.  Attorney  General 
v.  Kennon,  7  Ohio,  547. 


352  PUBLIC    HEALTH    ADMINISTRATION 

police  in  the  prevention  of  harm  to  the  citizens  as  a 
whole.  The  other  has  none  of  the  characteristics  of 
government.  He  has  no  part  of  the  sovereignty  dele- 
gated to  him.  He  deals  with  the  citizens  as  indi- 
viduals. He  may  be  under  the  general  supervision  of 
the  health  office,  and  incidentally  he  may  make  the 
bacteriologic  diagnosis  of  cases  suspected  of  being 
infectious.  He  may  also  attend  to  the  disinfections 
ordered  by  the  department,  but  essentially  his  position 
is  an  employment  under  contract.  With  such  a  differ- 
entiation of  position  the  following  are  some  of  the 
results.  The  officer  may  be  removed  at  any  time.  The 
physician  can  hold  his  position  for  the  year,  and  if 
discharged  before  the  expiration  of  the  contract,  unless 
he  be  guilty  of  violating  it,  he  could  recover  pay  for 
the  entire  year.  In  the  case  of  a  serious  epidemic, 
involving  a  very  material  increase  in  the  work  of  each, 
interfering  with  their  private  business,  the  health 
officer  could  not  hope  for  special  extra  compensation, 
and  the  city  would,  in  most  jurisdictions,  be  barred 
from  paying  extra  money,  above  the  regular  salary. 
The  physician  would  perhaps  have  no  legal  right  to 
demand  greater  pay,  but  the  city  could,  and  should 
in  justice,  award  him  extra  for  such  special  service. 
On  the  other  hand,  the  officer  may  at  any  time  resign 
his  office,  whereas  the  physician  cannot  give  up  his 
work  without  the  consent  of  the  city.  The  commis- 
sioner of  health,  so  far  as  his  duties  are  ministerial, 
may  delegate  them  to  an  assistant;  but  so  far  as  they 
are  with  discretion  he  must  do  the  work  himself.  The 
physician  may  employ  a  substitute,  provided  that  he 
supply  one  as  competent  as  himself,  particularly  if 
the  arrangement  be  made  with  the  consent  of  the  city 


OFFICERS  353 

authorities.  Mere  consent  of  the  city  government 
would  not,  apparently,  be  sufficient  for  the  providing 
of  a  substitute  commissioner  of  health.  An  ordinance 
providing  for  the  office  of  assistant,  or  deputy  com- 
missioner, would  be  necessary,  though  that  ordinance 
might  be  temporary,  in  the  form  of  a  resolution  form- 
ally passed  and  recorded,  stating  by  whom  the  appoint- 
ment shall  be  made.     (But  see  §  272.) 

If  it  be  held  that  the  commissioner  is  a  state  officer, 
that  is,  that  his  duties  are  such  that  he  is  using  the 
authority  of  the  state,  so  long  as  he  keeps  within  his 
discretion,  even  if  through  poor  judgment  serious 
harm  may  result  to  individuals,  neither  the  city,  nor 
the  officer  may  be  successfully  sued  in  the  courts.  If 
through  lack  of  care  injury  result  in  the  physician's 
service,  both  city  and  its  agent  are  liable  for  damages. 

It  must  be  remembered  that  the  two  positions  may 
be  combined.  The  statute,  or  ordinance,  providing  for 
the  appointment  of  the  commissioner  must  state  the 
duties  of  the  office.  If  it  seem  best  for  the  same  man 
to  perform  other  service  for  the  city,  service  not  con- 
flicting with  his  work  as  commissioner,  there  is  no 
reason  why  the  city  may  not  employ  him  for  such 
service.  Having  made  such  an  arrangement  in  case  of 
legal  question  as  to  office  or  employment,  it  will  be 
necessary  to  determine,  not  whether  he  be  an  officer, 
but  whether  in  the  matter  at  bar  he  acted  as  an  officer, 
or  as  an  agent  or  employee.  It  must  be  remembered 
that  the  additional  service  may  be  made  a  part  of  his 
official  duty.  If  the  additional  service,  by  resolution 
of  the  council  be  awarded  to  the  officer  by  name,  it 
would  probably  be  deemed  an  employment.  If  the 
resolution,  or  ordinance,  be  formally  passed,  imposing 


354  PUBLIC    HEALTH   ADMINISTRATION 

the  extra  duties  upon  the  commissioner,  without  men- 
tioning the  name,  they  would  be  deemed  official. 
Though  an  officer  may  not  receive  extra  pay  for  an 
increase  in  service  naturally  pertaining  to  his  office, 
he  may  receive  such  extra  pay  when  assigned  addi- 
tional duties.  (This  subject  will  be  discussed  later  in 
the  chapter.      §329.) 

§  266.  Offices  not  dependent  upon  statutes.  While, 
as  has  been  stated,  an  office  generally  depends  upon 
enactment  for  its  existence,  this  is  not  always  true. 
The  essential  characteristic  of  an  office  is  the  posses- 
sion of  some  degree  of  sovereign  power.  The  recog- 
nition of  the  office  may  be  found  in  the  common  law. 
We  thus  find  in  Connecticut  that  the  court  recognized 
a  clergyman  as  a  public  officer.  A  "clergyman,  in  the 
administration  of  marriage,  is  a  public  civil  officer, 
and  in  relation  to  this  subject,  is  not  at  all  distin- 
guished from  a  judge  of  the  superior  or  county  court, 
or  a  justice  of  the  peace,  in  the  performance  of  the 
same  duty;"  and  his  acts  are  prima  facie  evidence 
of  his  official  character.5  What  is  it  that  makes  him 
able  to  perform  this  service? — not  his  learning,  nor 
any  educational  degree,  but  his  investure  with  the 
office  by  the  church.  It  is  that  alone  which  gives  him 
the  authority  to  pronounce  a  man  and  woman  husband 
and  wife.  When  he  has  so  pronounced  it  will  take 
judicial  action  to  part  them  in  the  name  of  the  state. 
The  clergyman  is  invested  with  this  governmental 
authority  as  an  accident  to  his  position  in  the  church. 
But  authority  implies  also  duty.  As  an  officer  he  is 
charged  with  a  quasi-judicial  obligation.    In  England 

s  Goshen  v.  Stonington,  4  Conn. 
209. 


OFFICERS  355 

it  has  been  held  that  a  clergyman  of  the  Church  of 
England,  who  was  ad  hoc  a  public  officer,  was  there- 
fore guilty  of  a  misdemeanor  for  refusing  to  marry 
two  persons  who  might  be  legally  married.6  But  the 
greater  portion  of  a  clergyman's  work  is  not  clothed 
with  any  governmental  livery.  If  he  be  wrongfully 
kept  from  his  office,  unless  such  deprivation  involves 
the  loss  of  some  emolument  of  office,  or  legal  right,  the 
court  will  not  act  to  restore  him  to  his  official  position.7 
In  the  United  States  the  government  has  little  or  no 
control  over  the  entrance  of  men  into  the  public  office 
of  clergyman. 

It  is  more  than  possible  that  by  reasoning  similar 
to  that  relative  to  clergymen  physicians  may  be 
regarded  as  quasi-public  officers.  In  most  of  the  states 
the  state  does  exert  control  over  the  entrance  into  such 
an  office.  It  is  a  general  rule  that  a  person  may  hold 
two  offices  unless  they  be  incompatible,  and  that  a  per- 
manent office  exempts  from  a  temporary  service.8  By 
common  practice,  and  often  by  statutory  enactment, 
physicians  are  exempted  from  jury  service.  Such  an 
exemption  would  be  in  the  nature  of  special  privilege, 
and  therefore  repugnant  to  the  American  system, 
unless  the  exemption  be  based  upon  some  general  dis- 
qualification. As  special  privilege  it  would  also  be  an 
unconstitutional  provision,  according  to  the  constitu- 
tions of  many  states.  This  is  true  in  Illinois,  for 
example.  Now  there  could  be  nothing  in  the  personal 
character  of  physicians  which  would  unfit  them  for 
such  service.    They  are  of  good  moral  character,  and 

e  Beg.    v.    James,  2    Den.    Cr.  Winemiller,  4  H.  &  McH.    (Md.), 

Cas.  1.  429. 

7  Union   Church   v.  Saunders,    1  «  Rex  v.  Tizzard,  9  B.  &  C.  418. 

Houst      (Del.),     100;  Eunkel     v. 


356  PUBLIC   HEALTH   ADMINISTRATION 

more  intelligent  than  many  jurors.  There  is  nothing 
in  the  belief  of  physicians  which  would  unfit  them 
for  giving  fair  consideration  to  evidence.  The  Illinois 
statute,  listing  those  exempt  from  jury  service,  names 
school  teachers,  but  qualifies  the  exemption  by  adding 
"during  the  term  of  school."9  So,  as  to  clergymen, 
the  exemption  is  ' '  officiating  ministers  of  the  gospel. ' ' 
As  with  other  classes  mentioned  there  is  a  manifest 
conflict  between  their  ordinary  duties  and  the  tempo- 
rary service  on  the  jury,  so  when  "physicians"  are 
included  in  the  same  list  we  must  conclude  that  there 
is  an  official  conflict.  Farmers  are  not  exempted  ' '  dur- 
ing seedtime  and  harvest,"  though  at  such  a  time  for 
a  farmer  to  be  confined  on  jury  duty  might  very 
seriously  endanger  his  financial  standing,  and  even  the 
ownership  in  his  home.  Exemptions  are  not  based 
upon  the  conflict  between  private  business  and  public 
service.  A  juror  is  a  public  officer.10  The  exemption 
of  physicians,  therefore,  implies  that  they  also  have 
an  official  status.  Statutes  generally  state  the  qualifi- 
cations for  physicians.  They  also  name  some  of  the 
duties  of  physicians — duties  to  the  people  in  general, 
and  for  the  conduct  of  government.  They  are  given 
the  mandatory  duty  of  reporting  to  the  proper  officers 
all  cases  of  infectious  diseases  with  which  they  come 
in  contact.  Another  mandatory  duty  is  to  record 
legally  the  evidence  of  the  births  and  deaths  occurring 
in  their  practice.  These  reports  of  physicians  are  not 
sworn  to,  but  they  are  by  law  termed  "prima  facie  evi- 
dence" of  the  facts  recorded,  and  as  such  evidence 
they  are  used  in  many  classes  of  cases  decided  by  the 

s  Statutes,  HI.  Chap.  78,  Sec.  4. 
ioTurpin  v.  Booth,  56  Cal.  65; 
Hunter  v.  Mathis,  40  Ind.  356, 


OFFICERS  357 

courts.  These  duties  are  mandatory,  and  a  physician 
who  neglects  to  perform  these  public  duties  promptly 
and  accurately  is  false  to  his  trust,  and  should  be 
removed  from  office,  by  the  cancellation  of  his  license 
to  practice;  or,  if  he  does  not  wish  to  perform  his 
official  duties,  he  should  resign  his  office  by  retiring 
from  practice.  As  distinguished  from  these  official 
duties,  the  work  of  a  physician  for  the  government 
may  sometimes  be  an  employment.  Thus,  surgeons 
appointed  by  the  Commissioner  of  Pensions  are  not 
officers  of  the  United  States.11  Their  service  is  purely 
ministerial — to  examine  and  record  the  physical  con- 
dition of  applicants  for  pension  ordered  before  them. 
Such  examining  surgeons  do  not  possess  any  degree  of 
sovereign  authority.  As  employees  these  examining 
surgeons  are  paid  regular  fees,  proportional  definitely 
to  the  work  done.  If  upon  the  regular  day  the  board 
of  examiners  make  no  examinations  they  receive  no 
pay.  As  officers,  physicians  often  receive  no  pecuniary 
compensation  for  their  services.  An  employment 
always  implies  compensation. 

§  267.  Honorary  office.  When  there  is  no  pecuniary 
compensation  attached  to  an  office,  and  the  duties  are 
assumed  by  the  incumbent  merely  for  the  public  good, 
the  office  is  called  naked,  or  honorary.12 

§  268.  Lucrative  office.  An  office  of  profit,  also  called 
a  lucrative  office,  is  one  in  which  the  incumbent 
receives  compensation  for  his  services,  either  in  the 
form  of  salary,  honorarium,  or  fees.  As  used  in  law 
the  designation  lucrative  office  has  no  reference  to  the 
amount  of  compensation.    If  any  compensation  What- 

ii  U.   S.   v.  Germaine,  99  U.   S.  12  State  v.  Stanley,  66  N.  C.  59; 

508.  Throop  v.  Langdon,  40  Mich.  673. 


358  PUBLIC    HEALTH   ADMINISTRATION 

ever  be  attached  to  the  office,  it  is  presumed  in  law 
that  this  compensation  is  in  full,  even  though  it  be 
shown  that  the  necessary  expenses  of  the  officer  are 
in  excess  of  his  compensation.13 

§  269.  Classification  according  to  service.  It  is  cus- 
tomary to  classify  officers  according  to  their  duties 
into  military,  naval,  and  civil;  and  to  subdivide  the 
civil  officers  into  legislative,  judicial,  and  executive. 
It  would  seem  better  to  make  the  second  division  first, 
dividing  officers  into  legislative,  judicial,  and  execu- 
tive. Executive  officers  may  be  military,  naval,  or 
civil.  Judicial  officers  are  also  designated  civil,  though 
legislators  are  generally  not  considered  as  civil,  bas- 
ing this  action  upon  the  refusal  of  the  United  States 
Senate  in  1797  to  entertain  impeachment  proceedings 
against  Senator  "William  Blount,  on  the  ground  that 
he  was  not  a  civil  officer.14  Legislative  officers  are 
sometimes  grouped  under  the  head  ' '  civil. ' ' 15 

Legislative  officers  are  such  as  determine  what  the 
law  shall  be.  Their  duties  pertain  to  the  enactment 
of  statutes.  This  class  includes  the  members  of  Con- 
gress and  state  legislatures. 

Judicial  officers  determine  what  the  law  is,  or  was  at 
a  specified  time,  and  decide  controversies  between 
individuals,  or  between  individuals  and  the  public. 
They  alone  may  make  an  authoritative  interpretation 
of  the  law. 


isDailey  v.  State,  8  Blackf 
(Ind.)  329;  State  v.  Kirk,  44  Ind 
401;  State  v.  Valle,  41  Mo.  29 
People  v.  Whitman,  10  Cal.  38 
Crawford  v.  Dunbar,  52  Cal.  36; 


i*  Senate  Journal,  10th  January, 
1799;  Story,  Constitution,  792; 
Pomeroy,  Const.  Law,  716;  Bawle, 
Cons.  213;  Twenty  per  cent  Cases, 
13  Wall.  568. 


Kerr  v.  Jones,  19  Ind.  351 ;  State  is  Twenty    per    cent    Cases,    13 

v.  DeGress,    53    Tex.    387;    In   re  Wall.    568;    Tuck.    Black.    Comm. 

Corliss,  11  E.  I.  638 ;  Foltz  v.  Ker-  App.  57. 
lin,  105  Ind.  221. 


OFFICERS  359 

Executive  officers  are  those  whose  duty  it  is  to  secure 
observation  of  the  law  as  it  then  exists,  and  to  trans- 
act the  routine  business  of  the  government.  It  is  their 
duty  to  abide  by  the  will  of  the  people,  as  expressed 
in  the  legislative  branch.  The  fact  that  to  them  is 
entrusted  administrative  authority,  does  not  give  to 
them  the  right  to  ignore,  nor  oppose,  the  legislative 
branch  in  action.  As  executives  their  duty  is  purely 
to  obey  the  expressed  wish  of  the  people.  However, 
as  citizens,  and  particularly  as  having  special  knowl- 
edge of  a  subject,  it  is  the  privilege  and  perhaps  duty 
of  the  executive  to  give  advice  and  information  to  the 
legislature.  Having  given  the  advice  and  informa- 
tion, his  rights  cease  as  to  making  legislation,  except 
as  he  may  have  the  power  to  veto. 

§270.  Ministerial  or  discretionary  duties.  The 
duties  of  an  office  are  either  ministerial  or  discre- 
tionary. It  often  happens  that  the  duties  of  a  given 
officer  are  of  both  kinds.  When  a  specific  duty  is 
imposed  by  the  statutes  in  a  mandatory  way,  the 
executive  power  is  purely  ministerial.  If  the  officer 
is  permitted  to  use  his  judgment,  his  function  is  said 
to  be  discretionary.  "If  an  officer  has  discretion,  he 
may  do  any  act  within  that  discretion,  and  all  that  he 
does  will  be  held  to  have  been  done  by  express  authori- 
zation of  law.  On  the  other  hand,  if  the  duty  of  the 
officer  is  ministerial,  only  that  very  act  which  he  had 
been  directed  to  do  can  be  held  to  have  been  done  with 
authorization  of  law.  Therefore  if  he  acts  beyond  this 
express  authorization,  his  acts  will  be  held  to  be 
void."16  (§  360.)  The  ministerial  officer  must  do  all 
that  the  law  commands,  and  nothing  more.  Mandamus 

is  Wyman,  Admin.   Law,  83. 


360  PUBLIC   HEALTH   ADMINISTRATION 

may  be  used  to  enforce  the  performance  of  purely  min- 
isterial duties.17 

§271.  Discretion  implies  free  use  of  judgment. 
- '  The  meaning  of  the  term  discretionary,  when  granted 
by  the  law,  either  expressly  or  by  implication,  in  con- 
nection with  official  duty,  is  that  the  discretionary 
decision  shall  be  the  outcome  of  examination  and  con- 
sideration. In  other  words,  that  it  shall  constitute  the 
discharge  of  official  duty  and  not  be  a  mere  expression 
of  personal  will. ' ' 1S  This,  therefore,  is  the  essential 
characteristic  of  discretionary  duties,  that  they  must 
be  the  resultant  product  of  a  personal  investigation 
and  consideration.  If  the  action  taken  be  not  based 
upon  the  results  of  such  investigation  and  judg- 
ment,— if  it  be  not  the  outcome  of  reason,  the  act  is 
arbitrary  and  so  unauthorized  in  law.  As  Mr.  Cooley 
said,19  "A  public  office  is  a  public  trust";  and  he  who 
is  elected  or  appointed  to  an  office  with  discretionary 
power  is  false  to  his  trust  when  he  fails  to  be  governed 
solely  by  reason  in  the  discharge  of  his  duty.  "An 
office  whose  duties  and  functions  require  the  exercise 
of  discretion,  judgment,  experience,  and  skill  is  an 
office  of  trust,  and  it  is  not  necessary  that  the  office 
should  have  the  handling  of  money  or  property,  or  the 
care  or  oversight  of  some  pecuniary  interest  of  the 
government.,,2° 

§  272.  Discretionary  power  cannot  be  delegated.  It 
is  a  well  settled  rule  that  where  a  trust,  either  public 

17  U.  S.  v.  Seaman,  17  How.  225;  is  Southern  Law  Review,  Vol.  3, 

U.    S.    v.    Commissioners,    5    Wall.  N.  S.,  p.  531. 

563;   U.   S.  v.   Sehurz,   102   U.   S.  20  Mechem,  Pub.  Off.  16;  citing 

378;   People   v.   Bender,   36   Mich.  In  re  Corliss,  11  R.  I.  638;  Doyle 

195.  v.  Raleigh,  89  N.  C.  133. 

is  U.  S.  v.  Douglas,  19  D.  C.  99. 


OFFICERS  361 

or  private,  involves  matters  of  personal  judgment  or 
discretion  the  authority  cannot  be  delegated  to  another 
person.  It  is  presumed  that  the  trust  has  been  imposed 
upon  him  because  of  his  knowledge  or  special  fitness 
for  making  a  reasonable  decision  in  the  matter.  "A 
judicial  officer  cannot,  it  is  said,  make  a  deputy,  unless 
he  hath  a  clause  in  his  patent  to  enable  him,  because 
his  judgment  is  relied  on  in  matters  relating  to  his 
office,  which  might  be  the  reason  of  making  the  grant 
to  him."21  This  rule  has  been  applied  in  the  United 
States  as  to  private  agency,  presuming  that  the  agent 
has  been  selected  by  his  principle  because  of  special 
preference.22  A  physician  employed  to  treat  the  sick 
of  the  community  may  not  properly  employ  another 
to  do  his  work ;  and  if  he  does  so  he  is  not  entitled  to 
receive  pay  for  such  services.  It  is  legally  presumed 
that  his  own  employment  is  based  upon  the  estimate 
of  his  fitness.23 

Neither  may  a  health  officer  delegate  his  duties  to 
another,  so  as  to  give  the  person  employed  the  right 
to  make  his  services  a  county  charge.24  So  as  to  offi- 
cers, unless  there  be  a  specific  permission  in  the  en- 
acted laws  of  the  jurisdiction,  there  may  be  no  dele- 
gation of  powers  requiring  the  exercise  of  judgment 
and  discretion.25  So,  under  the  statutory  power  to 
employ  a  physician,  a  board  of  health  cannot  leave 

21  Bacon.  Abr.  Tit.  Offices  and  Mechem,  Pub.  Off.  567 ;  Crocker  v. 
Officers,  L.,  Vol.  VII.  Crane,  21  Wend.  211;  Sheehan  v. 

22  Mechem,  On  Agency,  Sees.  Gleeson,  46  Mo.  100 ;  State  v.  Pat- 
184-197;  Mechem,  Pub.  Off.  567.  terson,  34  N.  J.  L.  163;   Abrams 

23  Chapman  v.  Muskegon  County,  v.  Ervin,  9  Iowa,  87 ;  State  v. 
134  N.  W.  1025.  Shaw,  64  Me.  263 ;  Lewis  v.  Lewis, 

2*  Copple  v.  Davie  County,  50  9  Mo.  183;  Gale  v.  Kalamazoo,  23 
S.  E.  574.  Mich.   344. 

25Throop,       Pub.       Off.       572; 


362  PUBLIC    HEALTH   ADMINISTRATION 

this  duty  to  a  committee.26  Though  if  the  action  of 
the  committee  be  later  endorsed  by  the  board  the 
power  would  not  be  deemed  delegated,  and  the  action 
though  irregular  would  be  legal.27 

In  a  Wisconsin  case  it  was  said  that  the  power  to 
investigate  and  report  is  given  to  the  health  officer 
without  limitation,  but  the  power  to  take  measures 
for  the  prevention,  suppression,  and  control  of  the 
disease  is  vested  in  the  board  and  cannot  be  exercised 
by  the  health  officer  without  the  approval  of  the 
board.  Whether  this  legislation  is  wise  or  otherwise, 
and  whether  more  extensive  powers  should  be  given 
to  health  officers  are  not  questions  for  the  courts.  The 
legislature,  doubtless,  in  limiting  the  powers  of  the 
health  officers,  and  making  them  subject  to  the  ap- 
proval of  the  board,  clearly  intended  that  such  mat- 
ters involving  the  exercise  of  judgment  and  discre- 
tion should  be  vested  in  the  board,  and  not  in  the 
health  officer,  and  that  the  acts  of  the  health  officer  in 
such  matters  should  not  be  binding  without  the  ap- 
proval of  the  board.  This  seems  to  be  the  plain  and 
obvious  intention  of  the  legislature,  and  cannot  be 
disregarded.28 

We  fear  that  this  well  known  and  well  recognized 
principle,  that  discretionary  powers  shall  not  be  dele- 
gated, has  been  frequently  violated  by  boards  having 
charge  of  examinations  for  license.  The  Illinois  stat- 
ute relative  to  medical  practice,29  for  example,  pro- 
vides that  after  an  applicant  for  license  to  practice 
medicine  has  complied  with  certain  preliminary  re- 

26  Young  v.  Blackhawk  Co.,  66  28  Collier  v.  Town  of  Scott,  102 
Iowa,  460.                                                 N.  W.  909. 

27  Lyth  v.  Buffalo,  48  Hun,  175.  29  Stat.  111.,  Chap.  91,  Sec.  6. 


OFFICERS  363 

quirements,  "the  board  shall  notify  the  applicant  to 
appear  before  it  for  examination,"  and  "examina- 
tions may  be  made  in  whole  or  in  part  in  writing  by 
the  board."  Very  clearly  the  duties  of  the  board  in 
this  case  are  not  ministerial.  The  examination  re- 
quires the  exercise  of  judgment  and  discretion:  it 
must  therefore  be  conducted  by  the  board,  and  not  by 
deputies.  The  statute  further  specifies  in  what 
branches  of  professional  education  the  applicant  shall 
be  examined.  There  is  nothing  in  the  statute  which 
provides  for  license  "by  reciprocity,"  that  is,  the 
issuance  of  a  license  on  the  strength  of  an  examination 
made  in  another  state.  Since  this  judicial  duty  can- 
not be  delegated,  it  seems  that  such  licenses  by  reci- 
procity are  not  warranted  in  the  law  of  Illinois. 
Neither  would  it  be  lawful  for  a  member  of  the  board 
to  entrust  the  marking  of  examination  papers  to  an 
assistant,  or  deputy.  The  reading  of  the  papers  must 
be  done  in  person  by  the  member  of  the  board.  On 
the  other  hand,  the  direct  superintendence  of  the  ex- 
amination, the  watching,  and  otherwise  attending  to 
the  mechanical  details  of  the  test,  does  not  imply  a 
quasi- judicial  duty.  Such  service  is  ministerial,  and 
may  therefore  be  performed  by  a  deputy  or  clerk. 
(§426.) 

§  273.  Arbitrary  action  not  discretion.  Discretion 
implies  the  use  of  reason  rather  than  will.  "It  not 
infrequently  happens  that  the  statutes  require  par- 
ticular things  to  be  done  that  must  be  made  to  depend 
upon  the  judgment — discretion — of  a  designated  offi- 
cer, and  the  discretion  in  such  is  not  arbitrary,  it  is 
lawful  and  must  be  lawfully  executed,"  and  an  officer 
is  personally  liable  for  an  abuse  of  that  discretion.30 

so  State  v.  Yopp,  97  N.  C.  478. 


364  PUBLIC    HEALTH   ADMINISTRATION 

"It  follows  that  boards  of  health  may  not  deprive  any 
person  of  his  liberty,  unless  the  deprivation  is  made  to 
appear,  by  due  inquiry,  to  be  reasonably  necessary  to 
the  public  health." 31  Since  an  officer  may  not  exceed 
his  authority  and  in  a  matter  requiring  the  exercise  of 
judgment  arbitrary  action  is  not  warranted  in  law, 
such  arbitrary  action  is  contrary  to  law.  "An  officer 
charged  with  discretionary  power  is  not  liable  in  dam- 
ages unless  he  acts  arbitrarily,  and  in  obvious  viola- 
tion of  law."32  "It  is  a  general  rule  that  judicial 
officers  acting  within  their  jurisdiction  cannot  be  held 
personally  resjDonsible  for  the  improper,  or  erroneous 
performance  of  their  duties.  This  rule  embraces  all 
officers  exercising  discretionary  powers,"  but  the  rule 
does  not  apply  when  an  officer  has  been  actuated  by  cor- 
rupt or  malicious  motives,  or  has  practiced  fraud  upon 
the  injured  party.33 

§  274.  Officers  with  discretion  cannot  be  coerced.  A 
duty  which  is  imposed  with  discretion  implies  the  use 
of  a  free  exercise  of  judgment.  (§  159.)  Anything 
within  that  discretion  is  lawful.  It  therefore  follows 
that  the  officer  may  not  be  legally  coerced  in  his  deci- 
sion. He  may,  under  certain  circumstances,  be  com- 
pelled by  mandamus  to  take  action,  but  how  the  action 
shall  result  is  within  the  discretion  of  the  officer.  A 
board  may  be  compelled  to  audit  accounts,  but  not  to 
approve  them.34  A  board  of  auditors  may  be  com- 
pelled to  examine  an  account,  but  not  to  allow  the 

3i  Kirk  v.  Wyman,  65  S.  E.  R.  Rounds  v.  Mumford,  2  R.  I.  154; 

387.  Baker  v.  State,  27  Ind.  485. 

32  Ingersoll,      Pub.      Corp.      89 ;  33  Ingersoll,   Pub.   Corp.   90,   cit- 

Boute  v.  Emmer,  43  La.  Ann.  980;  ing  numerous  cases. 

Pruden  v.  Love,  67  Ga.   160;   Mc-  3*  People  v.  Supervisors.  53  Hun, 

Carthy    v.    DeArmit,    99    Pa.    63;  254. 


OFFICERS  365 

account.35  In  so  far  as  the  act  is  ministerial,  manda- 
mus will  lie  to  compel  action  even  upon  officers  with 
discretion;36  but  beyond  that  point  the  decision  of 
the  officer  must  be  absolutely  free  and  untrammeled. 
"To  the  judiciary  department  is  intrusted  the  inter- 
pretation of  the  laws,  the  determination  of  rights,  and 
the  application  of  remedies,  and  in  this  regard  it  is 
sometimes  difficult  for  the  courts  to  properly  appre- 
ciate the  fact  that  the  executive  department  is  charged 
with  perfectly  independent  duties,  which  require  the 
ascertainment  of  facts,  involve  the  interpretation  of 
laws,  and  in  many  respects  call  for  the  exercise  of 
judgment  and  discretion;  and  this  independence  is  so 
great  that  no  matter  how  gross  an  error  may  be  com- 
mitted in  the  execution  of  these  duties,  the  courts  are 
nevertheless  powerless  to  interfere.  Private  interests 
may  suffer  in  instances,  and  rights  may  sometimes 
be  denied;  but  these  alone  do  not  authorize  the  inter- 
ference of  the  courts  with  executive  officers.  Greater 
evils  could  not  exist  under  our  system  of  government 
than  would  follow  the  usurpation  by  the  judiciary  of 
powers  not  entrusted  to  them."  And  therefore,  in 
this  case,  the  court  refused  a  mandamus  to  compel  the 
registration  of  a  trademark.37  Any  effort  therefore 
made  to  influence  a  decision  of  such  an  officer,  other 
than  by  argument,  is  illegal.38     In  this  connection  it 

35  People  v.  Barnes,  114  N.  Y.  38  St.  Claire  v.  People,  85  111. 
317.  396;  People  v.  Henry,  236  111.  124; 

36  Attorney  General  v.  Common  People  v.  Dental  Examiners,  110 
Council,  29  Mich.  108;  State  v.  111.  105;  People  v.  Rose,  225  111. 
Commissioners,  31  Ohio,  451;  Peo-  496;  People  v.  Knickerbocker,  114 
pie  v.  Judge,  27  Mich.  170;  State  111.  539;  Commonwealth  v.  Mc- 
v.  Webber,  38  Minn.  397;  Case  v.  Laughlin,  120  Penn.  518;  State  v. 
Blood,  71  Iowa,  632;  Eden  v.  Tem-  Webber,  38  Minn.  397;  State  v. 
pleton,  72  Iowa,  687.  Young,    84     Mo.    90;     People    v. 

37  Seymour  v.  U.  S.,  2  App.  D.  C.  Chapin,  104  N.  Y.  96. 
240. 


366  PUBLIC   HEALTH   ADMINISTRATION 

may  not  be  out  of  place  to  call  attention  to  a  modern 
tendency  in  American  governmental  methods  which 
seems  to  be  a  violation  of  this  principle.  By  use  of 
the  patronage,  by  withholding  appropriations,  by 
riders  in  appropriation  bills,  and  by  various  other 
tricks,  executive  officers  have  sought  to  force  legisla- 
tive action  in  particular  lines,  and  legislatures  have 
tried  to  compel  executives  to  do  as  desired  by  the 
other  branch.  This  system  cannot  be  too  strongly 
condemned.  The  legislative  duty  rests  entirely  with 
the  legislature,  and  the  legislature  has  no  authority 
over  the  executive  other  than  that  found  in  legitimate 
statute  making.  The  present  tendency  is  to  destroy  the 
fundamental  division  of  government  into  three 
branches.  It  is  the  duty  of  the  executive  to  bring  to 
the  attention  of  the  legislature  subjects  requiring 
legislation,  according  to  his  opinion.  It  is  very  doubt- 
ful if  he  have  the  moral  right  to  call  special  sessions 
to  compel  the  legislature  to  do  specific  things. 

§  275.  Discretionary  decision  not  subject  of  pur- 
chase. By  common  law  and  common  parlance  efforts 
to  influence  decisions  of  officers  by  purchase  are 
deemed  corrupt  and  contrary  to  public  good.  Agree- 
ments or  contracts  made  to  bias  such  decisions  are  not 
legal.  Thus  an  agreement  to  appoint  a  certain  person 
to  office  is  void.39  "With  reference  to  legislation  it  has 
been  said:  "Any  contract,  therefore,  for  services  to 
be  performed  in  procuring  or  attempting  to  procure 
the  passage  or  defeat  of  any  public  or  private  act  by 
the  use  of  any  improper  means  or  the  exercise  of  undue 
influence,  or  by  using  personal  solicitation,  influence 
or  persuasion   with  the  members  is  void;   and   any 

39  Hager  v.  Catlin,  18  Hun,  148. 


OFFICERS  367 

agreement  for  the  payment  of  a  fee  for  such  services 
is  likewise  void. ' ' 40  Where  one  agreed  to  work  for  the 
election  of  a  certain  candidate,  on  condition  that  if  suc- 
cessful the  candidate  would  appoint  him  a  deputy, 
the  agreement  was  void.41 

§276.  Public  and  private  officers.  An  individual 
invested  with  some  portion  of  the  sovereign  powers  of 
the  government,  to  be  exercised  by  him  for  the  benefit 
of  the  public,  is  a  public  officer.42  As  distinguished 
from  the  foregoing  we  have  private  officers,  who  pos- 
sess none  of  the  sovereign  power.  It  is  one  of  the 
duties  of  the  state  to  protect  its  citizens  from  harm. 
This  is  a  sovereign  duty,  and  it  is  also  the  duty  of 
policemen.  They  are  therefore  public  officers.43  Since, 
however,  the  duties  of  a  police  patrolman  refer  chiefly 
to  the  enforcement  of  municipal  ordinances,  such  an 
officer  has  sometimes  been,  perhaps  mistakenly,  held 
to  be  not  a  public  officer.44  It  must  be  remembered 
that,  considering  the  nature  of  his  duties,  an  officer 
of  a  municipality  may  sometimes  be  a  public,  and 
sometimes  a  corporate  officer.  So  far  as  a  mayor's 
duties  consist  in  enforcing  state  laws  he  may  be  con- 
sidered as  a  state  officer;  but  in  signing  a  contract  for 
the  erection  of  a  municipal  gas,  or  water  plant  he  is 
acting  as  an  official  of  the  corporation  as  such.  In  a 
suit  alleging  injury  or  debt  the  court  would  consider, 
not  the  abstract  position  of  the  officer,  but  his  position 
with  regard  to  the  specific  act.    A  college  professor 

*o  Meohem,  Pub.  Off.  360,  citing  43  Dickson  v.  People,  17  HI.  191 ; 

cases.  Farrell    v.    Bridgeport,    45    Conn. 

4i  Stout  v.  Ennis,  28  Kans.  706.  191. 

42  Mechem,  Pub.  Off.  1 ;  Throop,  44  Doyle    v.    Kaleigh,    89    N.    C. 

Pub.  Off.  1-28 ;  Bunn  v.  People,  45  133. 
HI.  397;  U.  S.  v.  Smith,  124  U.  S. 
525. 


368  PUBLIC    HEALTH   ADMINISTRATION 

does  not  exercise  any  of  the  sovereign  powers  of  the 
state,  even  though  he  hold  his  position  in  a  state  uni- 
versity. He  is  therefore  not  a  public  officer.45  The 
members  of  a  commission  appointed  to  fund  the  float- 
ing of  a  municipal  debt  are  not  public  officers;46  and 
the  treasurer  of  a  city  was  held  not  to  be  a  public 
officer.47 

The  sovereign  power  is  represented  by  the  state. 
For  convenience  in  administration  the  state  is  divided 
into  counties,  towns,  villages,  and  cities.  Certain  com- 
munities incorporate  themselves  for  commercial  ad- 
vantage. As  portions  of  the  state  they  conduct  the 
local  affairs  of  the  state  government,  and  officers  thus 
engaged  are  public  officers.  As  cooperative  corpora- 
tions they  manufacture  gas,  lay  sewers,  and  sell  water, 
and  the  officers  thus  engaged  are  not  public  officers. 
Whatever  is  necessary  for  government,  or  essentially 
a  part  of  government,  is  public ;  whatever  is  essentially 
a  cooperative  affair  of  business  is  not  public.  This 
is  not  a  mere  distinction  of  name.  It  is  of  practical 
importance  because  of  the  difference  in  legal  liability. 
The  preservation  of  health,  and  the  protection  of  citi- 
zens generally  from  infectious  diseases,  is  an  attribute 
of  police  power,  and  that  power  is  an  evidence  of 
sovereignty.  It  naturally  follows  that  a  city  officer  of 
health  (not  a  physician  treating  the  poor  of  the  city  at 
public  expense),  though  appointed  by  the  municipality, 
and  with  powers  confined  to  the  limits  of  the  city,  is  a 
public  officer.48 

45  Butler  v.  Kegents,  32  Wis.  *i  State  v.  Wilmington,  3  Harr. 
124.                                                              (Del.)  294. 

46  People  v.  Middleton,  28  Cal.  ^  In  re  Whiting,  1  Edm.  Sel. 
608.                                                             Cas.   (N.  Y.)   498. 


OFFICERS  369 

§277.  State  versus  municipal  officers.  Because 
municipal,  township,  or  county  officials  who  exercise 
real  governmental  powers  are  essentially  doing  the 
work  of  the  state,  they  are  sometimes  called  "state 
officers."  Thus,  Judge  Dillon  says:49  "It  is  import- 
ant to  bear  in  mind  the  before  mentioned  distinction 
between  state  officers — that  is,  officers  whose  duties  con- 
cern the  state  at  large,  or  the  general  public,  although 
exercised  within  defined  territorial  limits — and  munici- 
pal officers,  whose  functions  relate  exclusively  to  local 
concerns  of  the  particular  municipality.  The  adminis- 
tration of  justice,  the  preservation  of  the  peace  and 
the  like,  although  confined  to  local  agencies,  are  mat- 
ters of  public  concern ;  while  the  enforcement  of  munici- 
pal by-laws  proper,  the  establishment  of  gasworks,  the 
construction  of  sewers  and  the  like,  are  matters  which 
pertain  to  the  municipality  as  distinguished  from  the 
state  at  large."50  Therefore,  police  are  state  officers, 
rather  than  municipal.51  Because  the  work  of  the 
police  department  of  cities  is  really  in  the  nature  of 
necessary  governmental  action,  and  because  it  has  fre- 
quently happened  that,  owing  to  local  influences,  the 
departments  have  been  lax  in  enforcing  certain  police 
regulations  of  the  statutes,  such  as  restriction  of  the 
sale  of  liquor,  it  is  now  becoming  more  common  to  place 
municipal  police  departments  under  direct  state  con- 
trol, and  statutes  so  providing  have  been  found  con- 

49  Municipal    Corporations,    Sec.  567;    Britton    v.    Steber,    62    Mo. 

58.                                                            '  370;    also   Fairlie,   Munic.   Ad.,   p. 

go  Citing  People  v.  Hurlburt,  24  142. 

Mich.   44;    Chicago   v.   Wright,   69  si  Burch  v.  Hardwick,  30  Gratt. 

111.  326 ;  People  v.  Draper,  15  N.  24 ;  Farrell  v.  Bridgeport,  45  Conn. 

Y.  543;  Wolsey  (In  re)  95  N.  Y.  191. 
135 ;  Astor  v.  New  York,  62  N.  Y. 


370  PUBLIC   HEALTH   ADMINISTRATION 

stitutional.52  When  the  administration  is  left  with  the 
municipality,  the  corporation  is  therefore  regarded 
simply  as  the  agent  of  the  state.  It  has  been  held  that 
the  state  may  fix  the  pay  of  municipal  police.53 

Whatever  has  been  said  relative  to  the  police  as  state 
officers,  applies  especially  to  public  health  administra- 
tors. Certainly,  if  any  local  officer,  that  is,  one  whose 
appointment  is  received  from  local  sources,  and  whose 
authority  is  limited  by  the  confines  of  the  city,  is  en- 
titled to  be  regarded  as  a  state  officer,  it  must  be  the 
officer  of  health,  for  his  efficiency  guards  other  com- 
munities besides  his  own,  and  his  negligence  endangers 
large  areas. 

1  i  The  health  officers  of  a  city  are  officers  of  the  state, 
their  functions  are  governmental  and  are  conferred  in 
the  interest  of  the  public  at  large. ' '  54  Public  officers, 
even  when  elected  by  the  voters  of  a  town  to  perform 
statutory  duties  which  involve  the  expenditure  of 
money  properly  raised  by  local  taxation,  are  not  the 
agents  of  the  town.  The  members  of  a  board  of  health, 
therefore,  cannot  be  removed  by  a  vote  of  the  inhabi- 
tants of  the  town.55  It  is  competent  for  the  legislature, 
in  the  preservation  of  the  public  health  and  prevention 
of  disease,  to  appoint  or  direct  the  manner  of  appoint- 
ing persons  to  act  as  health  officers,  and  to  impose  the 
expenses  incurred  by  them  in  the  performance  of  their 
duties  on  the  municipality  for  which  they  are  ap- 
pointed.56   When  the  state  law  provides  the  manner  of 

52Goodnow,    Principles    of  Ad.  54  White  v.   San  Antonio,  60  S. 

Law,   p.    100;    Fairlie,   Municipal  W.  427. 

Administration,    p.     142;     Dillon,  65  Attorney  General  v.  Stratton, 

Munic.  Corp.,  See.  40.  194  Mass.  51. 

53  See  Dillon,   Munic.   Corp.   60,  56  Keef  e  v.  Union,  56  Atl.  571. 
note  for  list  of  eases.     Baltimore 
v.  State,  15  Md.  376. 


OFFICERS  371 

appointing,  and  the  number  of  members  of  a  board  of 
health,  an  ordinance  changing  these  provisions  is  ille- 
gal and  void.57  The  police  power,  which  controls  every- 
thing essential  to  the  public  health,  has  been  left  to  the 
individual  states,  but  in  its  operation  it  is  largely  left 
to  the  authority  of  municipalities  and  of  local  boards 
of  health.58  But  where  the  legislature  has  vested  in 
boards  of  health  authority  to  make  regulations  and 
ordinances  to  preserve  the  public  health,  ordinances 
made  by  county  commissioners  are  invalid.59  This  last 
case  illustrates,  by  conflicting  ideas  of  authority,  the 
inadvisability  of  permitting  any  degree  of  real  legis- 
lative authority  to  an  administrative  board. 

§  278.  State  officers  proper.  As  in  ordinary  conver- 
sation a  word  varies  in  meaning  according  to  its  con- 
text, so  legal  terms  vary,  not  only  according  to  the 
individual  opinions  of  the  interpreting  authorities,  but 
also  according  to  the  context  in  which  the  words  are 
found  in  the  law  to  be  interpreted.  The  expression 
"state  officers"  as  used  in  the  preceding  paragraph 
refers  only  to  the  nature  of  the  duties  of  such  officers. 
It  is  the  duty  of  the  attorney  general  to  appear  for  and 
defend  ' '  state  officers. ' '  As  thus  used  the  term  applies 
only  to  those  who  are  connected  with  the  government  of 
the  state  at  large.60  Thus,  the  commissioners  of  a 
metropolitan  police  district,  even  though  appointed  by 
the  governer  of  the  state,  are  not  state  officers  in  this 

57  Lozin    v.    Newark    Board    of  ton  v.  Harvard,  8  Cush.  68 ;  Meyers 
Health,  48  N.  J.  L.  452.  v.  Clarke,  122  Ky.  866. 

58  Klopfer  v.  Board  of  Health,  59  state   v.    Beacham, .  34    S.    E. 
9  N.  P.  N.  S.  O.  33;  Atlantic  City  447. 

v.  Crandol,  38  Vr.  488 ;   Johnston  eo  Throop,  Public  Officers,  29. 

v.  Belmar,  13  Dick.  354;  Withing- 


372  PUBLIC    HEALTH   ADMINISTRATION 

sense.61  Neither  is  an  officer  elected  under  a  municipal 
charter  a  state  officer.62 

§279.  Officers  de  jure,  and  de  facto.  There  is 
another  important  classification  of  officers,  namely 
officers  de  jure,  and  officers  de  facto.  A  de  jure  officer 
is  one  who  has  been  legally  appointed  or  elected  to  a 
genuine,  or  de  jure,  office,  and  who  has  complied  with 
all  of  the  requirements  pertaining  to  the  assumption  of 
the  office.  This  implies  that  he  is  legally  eligible  for 
the  office,  that  he  has  a  legally  executed  commission, 
and  otherwise  has  complied  with  the  constitutional  or 
statutory  requirements.  A  defect  at  any  point  makes 
the  officer  de  facto.  As  ordinarily  used  the  terms  are 
exclusive.63  An  officer  de  jure  may  or  may  not  be  in 
possession  of  the  office,  though  Mechem64  defines  an 
officer  de  jure  as  "one  who  has  the  lawful  right  to  the 
office  in  all  respects,  but  who  has  either  been  ousted 
from  it  or  who  has  never  actually  taken  possession  of 
it.  "When  the  officer  de  jure  is  also  the  officer  de  facto 
the  lawful  title  and  possession  are  united. ' ' 65 

Lord  Ellenborough,  in  Bex  v.  Bedford  Level,66  has 
defined  an  officer  de  facto  to  be  * '  one  who  has  the  repu- 
tation of  being  an  officer  he  assumes  to  be,  and  yet  is 
not  a  good  officer  in  point  of  law. "  Although  there  has 
been  a  tendency  to  qualify  this  definition  in  American 
cases,  requiring  the  color  of  title  to  the  office,  by  virtue 
of  an  election  or  appointment,67  it  is  now  the  estab- 

6i  N.  Y.  &  Harlem  E.  E.  Co.  v.  65  Citing  Hamlin  v.  Kassafer,  15 

Mayor,  1  Hilt.   (N.  Y.)   441.  Oreg.    456;    Plymouth   v.    Painter, 

62Britton  v.  Steber,  62  Mo.  370;  17  Conn.  585. 

Mohan   v.   Jackson,   52    Ind.    599;  663  East,  356. 

People  v.  Conover,  17  N.  Y.  64.  67  Wilcox    v.     Smith,    5    Wend. 

eaThroop,  Public  Officers,  622.  (N.    Y.)    231;    Cary  v.    State,    76 

64  Public   Officers,   316.  Ala.    78;    People    v.    Tieman,    30 


OFFICERS  373 

lished  usage  to  follow  the  definition  given  by  Chief  Jus- 
tice Butler  of  Connecticut,  in  State  v.  Carrol.68  He 
said:  "An  officer  de  facto  is  one  whose  acts,  though 
not  those  of  a  lawful  officer,  the  law,  upon  principles 
of  policy  and  justice,  will  hold  valid  so  far  as  they 
involve  the  interests  of  the  public  and  third  persons, 
where  the  duties  were  exercised:  First,  without  a 
known  appointment  or  election,  but  under  such  circum- 
stances of  reputation  or  quiescence  as  were  calculated 
to  induce  people,  without  inquiry,  to  submit  to  or 
invoke  his  action,  supposing  him  to  be  the  officer  he 
assumed  to  be.  Second,  under  color  of  a  known  and 
valid  appointment  or  election,  but  where  the  officer  has 
failed  to  conform  to  some  precedent  requirement  or 
condition,  as  to  take  an  oath,  give  a  bond,  and  the  like. 
Third,  under  color  of  a  known  election  or  appointment, 
void  because  the  officer  was  not  eligible,  or  because 
there  was  a  want  of  power  in  the  electing  or  appointing 
body,  or  by  reason  of  some  defect  or  irregularity  in  its 
exercise,  such  ineligibility,  want  of  power  or  defect 
being  unknown  to  the  public.  Fourth,  under  color  of 
an  election,  or  appointment  by  or  pursuant  to  a  public 
unconstitutional  law,  before  the  same  is  adjudged  to  be 
such. ' ' 

The  reason  why  public  policy  demands  that  for  the 
time  during  which  they  officiate,  such  officers*  acts 
should  be  legal  as  regards  the  public  and  third  persons, 
is  well  stated  by  Justice  Devens,  in  the  case  of  Peter- 
silea  v.  Stone.69 

Barb.    193 ;    People    v.    Collins,  7  Wickwire,  19  Conn.  492 ;  Carleton 

Johns   (N.  Y.),  549;   Mclnstry  v.  v.  People,  10  Mich.  250. 

Tanner,    9    Johns,    135;    Cocke  v.           68  38  Conn.  449. 

Halsey,    16    Pet.    71 ;    Douglas  v.           eo  119  Mass.  465. 


374  PUBLIC   HEALTH   ADMINISTRATION 

A  usurper,  one  who  thrusts  himself  into,  or  assumes 
an  office  contrary  to  law,  is  distinguished  from  an  officer 
de  facto.  The  acts  of  a  person  who  thus  intrudes  him- 
self without  color  of  law,  are  void  both  as  regards  the 
public  and  as  to  other  persons.70  One  who  is  at  first  a 
mere  usurper  may  by  acquiescence  become  an  officer  de 
facto.71  Likewise,  an  officer  de  facto  may  become  an 
officer  de  jure,  through  the  completion  of  some  of  the 
required  steps  of  entering  into  office,  such  as  filing  a 
bond,  taking  an  oath,  or  the  issuance  of  a  legal  com- 
mission. 

Members  of  a  board  of  health  for  a  village  constitute 
a  board  de  facto,  notwithstanding  irregularity  in  the 
passage  of  the  ordinance  creating  the  board ; 72  but  a 
city  physician,  though  duly  elected  by  the  city  council, 
is  not  ex  officio  a  member  of  the  board  of  health,  where 
the  ordinance  making  him  such  is  invalid.73 

§  280.  No  office  de  facto.  There  can  be  no  office 
de  facto,  according  to  the  system  of  the  United 
States.74  ''Where  the  law  has  provided  that  an  office 
may  legally  be  filled  then  the  acts  of  an  incumbent 
may  be  valid  although  not  lawfully  appointed,  because 
the  public  being  bound  to  know  the  law,  knows  that 
somebody  may  or  should  fill  the  place  and  perform  the 
duties;  and  possession  would  as  to  them  be  evidence  of 

70  State    v.    Taylor,    108    N.    C.  72  Smith  v.  Lynch,  29  Ohio,  261. 

196;  Plymouth  v.  Painter,  17  Conn.  73  Attorney  General  v.  McCabe, 

585;    State    v.    Carroll,    38    Conn.  52  N.  E.  717. 

449;   Hooper  v.  Goodwin,  48   Me.  74  Hildreth  v.  Mclntire,  1  J.  J. 

79;  Tucker  v.  Aiken,  7  N.  H.  113;  Marsh  (Ky.),  206;  Hawver  v.  Sel- 

Hamlin  v.  Kassafer,  15  Ore.  456;  denridge,  2  W.  Va.  274;  Norton  v. 

McCraw    v.    Williams,    33    Gratt.  Shelby  County,  118  U.  S.  425. 
(Va.)  510. 

7iMechem,  Public  Officers,  319; 
State  v.  Carroll,  38  Conn.  449. 


OFFICERS  375 

title.  But  where  the  law  itself  negatives  the  idea  that 
there  can  be  a  legal  incumbent,  anyone  assuming  to 
act  assumes  what  everyone  is  bound  to  know  is  not  a 
legal  office,  and  his  acts  cannot  be  effectual  for  any 
purpose."75  But  the  rule  "would  seem  to  be  that  a 
person  who  holds  a  position  which  has  been  estab- 
lished by  an  unconstitutional  law,  should  be  regarded, 
until  the  law  establishing  the  position  has  been 
declared  unconstitutional,  a  de  facto  officer,  inasmuch 
as  he  is  holding  a  position  under  color  of  the  title 
which  comes  from  a  law  which  has  not  been  formally 
declared  unconstitutional.  This  view  of  the  subject 
may  also  be  sustained  upon  the  theory  that  the  title  to 
office  may  not  be  impeached  in  a  collateral  proceeding 
to  which  the  officer  is  not  a  party,  even  though  the 
ground  of  the  impeachment  is  the  fact  that  the  position 
is  based  upon  an  unconstitutional  law."  76  An  officer 
de  jure  may  become  an  officer  de  facto,  through 
the  expiration  of  his  term  of  office.77  But  when 
the  statute  provides  that  an  incumbent  shall 
hold  his  office  until  his  successor  is  elected  or 
appointed  and  qualified,  the  officer  so  holding  over  is 
an  officer  de  jure,  not  de  facto.78  "Where  such  a  pro- 
vision exists,  it  is  held  that  so  far  as  it  is  necessary  to 

75  Campbell,  J.,  in  Carleton  v.  78  Goodnow,  Prin.  Ad.  Law,  p. 
People,  10  Mieh.  250,  258.  306;   State   v.  Bulkeley,  61   Conn. 

76  Goodnow,  Principles  of  Ad-  287;  People  v.  Forquer,  1  111.  104; 
ministrative  Law,  p.  258,  citing  People  v.  Bissell,  49  Cal.  407;  Peo- 
State  v.  Gardner,  54  Ohio,  24;  pie  v.  Hammond,  66  Cal.  654;  Peo- 
Burt  v.  Kailway  Co.,  31  Minn.  pie  v.  Tyrell,  87  Cal.  475;  People 
472;  American  Law  Review,  Jan.  v.  Tilton,  37  Cal.  614;  People  v. 
1896;  Leach  v.  People,  122  111.  Osborne,  7  Colo.  605 ;  State  v.  Har- 
240.  rison,  113  Ind.  434;  People  v.  Me- 

77  People   v.    Tieman,    30    Barb.  Adoo,  110  N.  Y.  Sup.  432. 
193;   Newman  v.  Beckwith,  61  N. 

Y.  205. 


376  PUBLIC   HEALTH   ADMINISTRATION 

the  protection  of  the  public  the  officer  will  be  deemed 
to  be  in  office  even  if  he  has  resigned  and  his  resigna- 
tion has  been  accepted."79  The  appointments  of  an 
officer  de  facto  are  themselves  de  facto,  and  the  Eng- 
lish rule  is  that  ousting  the  appointer  also  ousts  the 
appointee.80  Though  there  is  some  difference  in  the  rul- 
ing of  American  courts,  the  English  rule  seems  to 
have  been  followed  in  the  later  American  cases.81  It  is 
manifestly  impossible  that  two  persons  shall  hold  the 
same  position  at  one  and  the  same  time.  It  therefore 
follows  that  there  can  not  be  at  the  same  time  an  officer 
de  jure  and  an  officer  de  facto.82  Neither  can  there  be 
two  officers  de  facto  for  the  same  office.83 

§281.  Determination  of  title  to  office.  Since  the 
actual  occupancy  of  an  office  presupposes  that  the 
incumbent  is  there  lawfully,  it  is  a  well  recognized 
principle  that  the  title  to  office  cannot  be  tested  col- 
laterally.84 Thus  an  injunction  will  not  lie  to  oust  a 
usurper  from  office.85  (§  382.)  Neither  may  the  title  to 
office  be  tried  by  certiorari.86  (§  383.)  In  Simon  v. 
Hoboken,86a  the  court  held  that  certiorari  would  not  lie 
to  test  title  to  office,  even  though  the  person  appointed 

79  Goodnow,   Prin.   Ad.  Law,   p.  Ohio,  16 ;  State  v.  Jacobs,  17  Ohio, 

306;    State  v.  Bulkeley,   61   Conn.  143;  Mallett  v.  Uncle  Sam  G.  Co., 

287;    State  v.  Howe,  25  Ohio  St.  1  Nev.  188. 

588.  82  Mechem,  Public   Officers,   322, 

so  Rex  v.   Lisle,   Andrews,   163 ;  citing  cases. 

Rex  v.  Mayor,  5  Term  R.    (D.  &.  «3  Mechem,  Public  Officers,  323, 

E.)    66;    Rex  v.   Grimes,    5    Burr,  citing  cases. 

2599;    Rex    v.    Hebden,    Andrews,  8*  Mechem,  Pub.  Off.  330,  citing 

389.  cases,  343. 

si  People  v.  Anthony,  6  Hun  (N.  ^  Throop,  Pub.  Off.  850,  citing 

Y.),    142;    People   v.    Murray,    73  cases. 

N.  Y.  535;  Contra,  People  v.  Sta-  **  Donough  v.  Dewey,  82   Mich, 

ton,  73  N.  C.  546 ;  Brady  v.  Howe,  309. 

50  Miss.  608;   State  v.  Ailing,  12  sea  52  N.  J.  L.  367. 


OFFICERS  377 

had  not  entered  upon  the  discharge  of  his  duties,  so 
that  quo  warranto  would  not  lie. 

Mandamus  will  not  lie  to  oust  an  officer  de  facto.87 
(§  384.)  When  the  title  to  office  has  been  settled,  and 
there  is  no  other  incumbent,  then  mandamus  may  be 
employed  to  seat  the  officer  de  jure.8S 

Since  a  person  may  not  profit  by  his  own  fault,  it 
naturally  follows  that,  though  the  acts  of  an  officer 
de  facto  are  valid  as  regards  others,  they  are  not  valid 
as  regards  himself.  "When  an  individual  claims  by 
action  an  office,  or  the  incidents  to  the  office,  he  can 
only  recover  upon  proof  of  title.  Possession  under  color 
of  right  may  well  serve  as  a  shield  for  defense ;  but  can- 
not, as  against  the  public,  be  converted  into  a  weapon 
of  attack,  to  secure  the  fruits  of  the  usurpation  and  the 
incidents  of  the  office. ' ' 89  Neither  may  an  officer 
de  facto  plead  in  defense,  when  action  is  brought 
against  him  for  any  misfeasance  in  office,  that  he  was 
not  an  officer  de  jure.90  Likewise,  he  may  be  com- 
pelled by  mandamus  to  perform  the  duties  of  the 
office  which  he  assumes.91 

The  proper  remedy  to  test  the  title  to  office,  in  the 
absence  of  any  special  statutory  provision,  is  by  quo 
warranto,  or  information  in  the  nature  of  quo  war- 
ranto,92 except  in  the  case  of  officers  of  a  court,  where 
the  matter  may  be  decided  by  motion.    (§  379.) 

87  Throop,  Pub.  Off.  825  et  seq.,  Mechem,     Pub.     Off.     338,     citing 

citing  cases.  cases. 

ss  Throop,  Pub.  Off.  828,  citing  oi  Mechem,       Pub.       Off.      339 ; 

cases.  Throop,  Pub.  Off.  666;  Bunion  v. 

89  People    v.    Tieman,    30    Barb.  Latimer,    6    S.    C.    126;    Kelly    v. 

193;   Mechem,  Pub.  Off.  331,  342;  Wimberly,  61   Miss.  548. 

Throop,  Pub.  Off.  517,  518,  citing  02  Mechem,      Pub.       Off.      344; 

cases,  659.  Throop,  Pub.  Off.  776  et  seq. 

so  Throop,       Pub.       Off.       664; 


378  PUBLIC   HEALTH   ADMINISTRATION 

A  de  facto  officer  may  be  punished  for  negligence, 
malfeasance,  or  misfeasance.93  He  may  be  compelled 
by  mandamus  to  perform  the  duties  of  the  office.94 
But  he  may  at  any  time  withdraw  from  office,  or  pub- 
licly disavow  authority,  and  he  will  thereafter  not  be 
liable  for  nonfeasance.95 

An  officer  de  facto  cannot  enforce  payment  for  his 
services.96  The  emoluments  of  office  belong  to  the  offi- 
cer de  jure,  even  though  he  be  kept  out  of  office,  and 
he  may  collect  the  same  from  the  proper  disbursing 
officer.97  It  has  been  held  in  one  case  that  the  officer 
de  jure  may  collect  all  of  the  emoluments  of  the  office, 
and  that  he  need  not  deduct  the  amount  which  he  has 
otherwise  earned  while  he  was  kept  out  of  his  office.98 

When  the  officer  de  facto  has  been  paid  the  salary, 
the  officer  de  jure  may  not  claim  the  salary  from  the 
officer  or  corporation  which  has  paid  the  officer  de 
facto."  But  he  may  collect  by  action  for  that  purpose, 
against  the  officer  de  facto.100  It  has  sometimes  been 
held  that  an  officer  de  facto  is  entitled  to  deduct  his 
expenses  in  earning  the  fees  and  emoluments.1  In 
other  cases  it  was  held  that  the  officer  de  jure  might 
collect  the  whole  salary,  without  deduction.2  In  New 
Jersey  it  was  held  that  the  officer  de  jure  might  not 

93  Mechem,   Pub.    Off.    336,   337,  N.  Y.  536;   Andrews  v.  Portland, 

338;  Throop,  Pub.  Off.  668.  79  Me.  484. 

9*  Mechem,      Pub.      Off.      339;  »9  Memphis     v.     Woodward,     12 

Throop,  Pub.  Off.  666.  Heisk,    499;     Mechem,    Pub.    Off. 

ssMechem,       Pub.       Off.      340;  332;   Goodnow,  Prin.  Ad.  Law,  p. 

Throop,  Pub.  Off.  666.  288. 

96  Mechem,  Pub.  Off.  331;  ioo  Mechem,  Pub..  Off.  333; 
Throop,  Pub.  Off.  661.  Throop,  Pub.  Off.   523;   Goodnow, 

97  Throop,  Pub.  Off.  661 ;   Fitz-  Prin.  Ad.  Law,  p.  288. 
Simmons  v.   Brooklyn,    102   N.   Y.  i  Mayfield  v.  Moore,  53  111.  428. 
536.  2  People  v.  Miller,  24  Mich.  458. 

98  Fitzsimmons  v.  Brooklyn,  102 


OFFICERS  379 

recover  the  salary  earned  by  the  officer  de  facto.3  The 
public  cannot  recover  salary  voluntarily  paid  to  an 
officer  de  facto.4  The  emoluments  collected  by  an  officer 
de  facto,  may  be  collected  from  him  by  the  officer  de 
jure,  but  they  may  not  be  collected  from  his  sureties.5 

Dillon  calls  attention G  to  the  fact  that  the  fees  of  an 
office  are  not  property,  and  cannot  be  collected  by 
action  against  the  city,  by  officer  wrongfully  kept  from 
office.7 

"Where  a  statute  annexes  a  pecuniary  penalty  to  an 
office,  and  empowers  a  particular  officer  to  sue  for  it,  a 
person  suing  for  the  penalty  must  show  that  he  is  the 
officer  de  jure,  as  well  as  de  facto.8  This  results  from 
the  rule,  that  he  must  sue  in  his  individual  name,  with 
the  addition  of  his  official  title ;  and  in  pleading  he  must 
allege,  that  he  is  the  officer  he  purports  to  be,  upon 
which  issue  may  be  taken.9  But  where  a  statutory 
penalty  is  given  to  a  town,  county,  or  other  munici- 
pality, an  action  therefore  may  be  maintained  by  the 
municipality,  although  the  penalty  was  incurred  by  the 
violation  of  rules  established  by  officers  of  the  munici- 
pality, who  were  merely  officers  de  facto,  ex  gr.  a 
board  of  health. "  10 

§  282.  Appointment  to  office.  An  appointment  may 
be  the  result  of  the  action  of  a  single  officer,  or  of  a 

3  Stuhr    v.    Curran,    15    Vroom,  20  Kans.  298 ;  Dolan  v.  Mayor,  68 

181.  N.  Y.   279;    Hadley  v.  Mayor,  33 

♦  Badeau  v.   United   States,   130  N.  Y.  603. 
U.  S.  439.  8  Horton  v.  Parsons,  37  Hun,  42 ; 

5  Throop,  Pub.  Off.  256,  citing  People  v.  Nostrand,  46  N.  Y.  375. 
Curry  v.  Wright,  86  Tenn.  636;  9  Gould  v.  Glass,  19  Barb.  179; 
Mechem,  Pub.  Off.  334.  Supervisor  v.  Stinson,  4  Hill    (N. 

6  Municipal  Corporations,  235,  Y.),  136;  Commissioners  v.  Peck, 
note.  5  Hill,  215. 

7  Citing  Smith  v.  New  York,  37  i°  Throop,  Pub.  Off.  862,  citing 
N.  Y.  518 ;  Saline  Co.  v.  Anderson,  Bedford  v.  Eice,  58  N.  H.  446. 


380  PUBLIC   HEALTH   ADMINISTRATION 

select  body.  The  fact  that  a  statute,  in  prescribing 
that  certain  officers  shall  be  chosen  by  certain  boards, 
uses  the  word  election  does  not  affect  the  question,  for 
such  a  selection  is  in  legal  effect  an  appointment.11  A 
selection  made  by  a  court,  or  by  the  legislature,  or  by  a 
municipal  council,  is  not  an  election.  It  is  legally  an 
appointment.12  "An  appointment  by  the  Governor  or 
other  person  is  not  an  election,  so  as  to  satisfy  a  pro- 
vision of  the  constitution  directing  an  election  in  cer- 
tain cases."13 

§  283.  Appointment  by  same  branch  of  government. 
The  fundamental  idea  of  the  separation  of  the  powers 
implies  the  right  of  each  branch  to  select  its  own  agents. 
(§  124.)  The  legislature  may  therefore  appoint,  either 
directly  or  indirectly  through  its  officers,  executive 
officers  for  its  own  body.14  Such  appointments  could 
not  be  made  by  the  general  state  executive.  On  the 
other  hand,  and  for  like  reason,  the  legislature  may  not 
appoint  a  purely  administrative  officer.15  In  State  v. 
Hyde,  Mr.  Justice  Berkshire  said  "that  the  power  to 
appoint  to  office  is  not  a  legislative  function  it  seems 
there  can  be  no  question.  Is  it  an  executive  function? 
That  the  power  to  appoint  to  office  is  intrinsically  an 
executive  function  has  been  decided  over  and  over 
again.  Therefore  the  legislature  cannot  do  what  it  has 
attempted  in  this  case:  take  upon  itself  the  appoint- 
ment of  the  head  of  a  department,  as  the  appointment 

"Sturgis  v.  Spofford,  45  N.  Y.  Officers,  84;  Wyman,  Ad.  Law,  47. 

446.  i3Throop,   Pub.    Off.   84,   citing 

12  State  v.  MeCollister,  11  Ohio,  Speed  v.  Crawford,  3  Met.   (Ky.) 

46;    Carpenter   v.    People,    8    Col.  207. 

116;  People  v.  Lord,  9  Mich.  227;  "State  v.  Denny,  118  Ind.  449. 

People  v.  Bull,  46  N.  Y.  57 ;  State  is  State  v.  Kennon,  7  Ohio,  546 ; 

v.  Denny,  118  Ind.  449;    State  v.  State  v.  Hyde,  121  Ind.  20. 
Hyde,   121  Ind.   20;   Throop,  Pub. 


OFFICERS  381 

to  office  is  an  executive  function. ' '  The  legislature  may 
establish  the  office,  and  may  provide  for  the  appoint- 
ment of  the  officer;  it  may  increase  or  decrease  his 
duties ;  but  it  may  not  appoint.  Therefore,  when  Con- 
gress established  a  commission  for  a  park,  and  pro- 
vided that  it  should  consist  of  five  persons,  three  of 
whom  should  be  appointed  by  the  President,  with  the 
advice  and  consent  of  the  Senate,  and  the  other  two 
should  be  two  existing  officers  of  the  United  States,  it 
was  held  that  Congress  did  not  appoint  these  two  addi- 
tional members  to  the  commission,  but  that  it  simply 
enlarged  their  previous  duties,  and  left  the  appointing 
power  in  the  hands  of  the  President.16 

§  284.  Appointment  by  nonomcial  body.  Throop 
cites,17  with  apparent  approval  Sturges  v.  Spofford,18 
and  In  re  Bulger,19  to  show  that  in  the  absence  of  any 
specific  direction  in  the  constitution  of  the  state,  the 
legislature  may  provide  for  appointment  by  unofficial 
persons  or  corporations.  We  may  hardly  agree  with 
that  distinguished  writer,  nor  with  the  reasoning  of 
the  court  cited.  The  decision  written  by  Mr.  Justice 
Cartwright  in  Lasher  v.  People,20  seems  to  be  the  more 
safe.  In  effect,  it  is  that  since  the  legislature  could 
not  itself  make  the  appointment,  as  that  would  be  an 
encroachment  of  the  legislative  upon  the  powers  of 
the  executive,  therefore  the  legislature  was  also  power- 
less to  grant  the  appointive  power  to  another,  to  clothe 
the  corporations  with  the  sovereign  power  of  appoint- 
ment. 

is  Shoemaker   v.  United   States,           «  45  Cal.  553. 

147  U.  S.  282.  20  183    111.    226,    233.     See    also 

"  Pub.  Off.  85.  Commissioners    Ct.    Perry    Co.    v. 

18  45  N.  Y.  446.  Med.  Soc,  128  Ala.  257. 


382  PUBLIC    HEALTH    ADMINISTRATION 

In  Lasher  v.  People 21  there  was  also  a  constitutional 
question  involved,  further  than  that  of  the  separation 
of  the  powers.  The  statute  involved  was  an  act  passed 
in  1899  to  regulate  the  shipping,  consignment,  and  sale 
of  produce,  fruit,  butter,  eggs,  poultry,  etc.  The  act 
created  a  Board  of  Inspectors,  and  provided  that  those 
inspectors  should  be  appointed  by  several  societies 
from  their  own  membership.  One  member  was  to  be 
selected  by  each  of  the  societies  named.  The  constitu- 
tion of  the  state  prohibits 22  the  legislature  from  pass- 
ing any  law  ' '  Granting  to  any  corporation,  association, 
or  individual  any  special  or  exclusive  privilege,  im- 
munity or  franchise  whatever."  The  court  said: 
' '  Such  rights  as  inhere  in  the  sovereign  power  can  only 
be  exercised  by  the  individual  or  corporation  by  virtue 
of  a  grant  from  such  sovereign  power,  and  whenever 
the  state  grants  such  a  right  it  is  a  franchise. ' ' 23  The 
appointing  power  is  an  attribute  of  sovereignty.24 
Therefore  the  granting  to  these  private  corporations 
the  right  to  appoint  public  officers  was  granting  to  them 
special  privileges,  and  franchise.  The  act  was  there- 
fore unconstitutional. 

This  prohibition  as  to  the  granting  of  appointive 
power  to  corporations  or  individuals  outside  of  the 
official  body  has  a  direct  application  in  the  administra- 
tion of  public  health.  It  is  frequently  suggested  that 
the  selection  of  health  officials,  or  members  of  medical 
examining  boards,  should  be  left  to  the  membership 
of  the  medical  societies,  who  would  be  the  more  com- 
petent, on  an  average,  to  make  proper  selections.    The 

2H83  HI.  226.  111.    80;    People   v.   Holtz,   92   111. 

22  Art.  IV,  See.  22.  426. 

23  Board  of  Trade  v.  People,  91  **  1   Blaekstone  's  Com.  272. 


OFFICERS  383 

general  rule  would  prohibit  such  delegation  of 
appointing  power.  To  a  degree,  the  same  end  may  be 
secured  by  requiring  the  societies  to  nominate  to  the 
appointing  officer  such  persons  as  may  be  deemed 
suitable.  Such  nominations,  however,  would  have  no 
binding  power,  and  the  appointing  power  may  entirely 
disregard  them.  "As  the  function  is  executive,  it  is 
independent;  no  dictation  to  the  department  can  be 
made  without  violation  of  the  rule  of  separation  of 
powers.  Qualifications  upon  the  eligibility  of  officers 
may  be  made,  but  directions  as  to  the  choice  may  not 
be  made.  Since  appointment  is  an  executive  function, 
these  results  follow." 25 

§  285.  Power  to  appoint  must  be  given  by  law. 
The  power  of  appointment  must  be  distinctly  given 
either  by  the  constitution,  or  by  the  legislative  enact- 
ment.26 It  is  customary  in  the  state  constitutions  to 
give  to  the  Governor  a  general  power  of  appointment 
in  all  cases  where  either  by  the  constitution,  or  by 
enactment,  other  provision  is  not  made.  (§  125.)  It  is 
also  customary  in  the  constitutions  and  statutes  that 
the  power  of  appointment  given  to  the  Governor  over 
the  more  important  offices,  is  subject  to  the  advice  and 
consent  of  the  senate.  The  appointment  consists  in 
the  choice.  If  the  choice  requires  nothing  more  than 
the  commission  of  the  appointing  power,  the  appoint- 
ment is  absolute.  When  the  consent  of  another  body 
or  officer  is  required  before  the  issuance  of  the  com- 
mission, the  appointment  is  conditional.  Where  an 
officer  was  appointed  when  the  senate  was  not 
in    session,     and    entered    upon    the    discharge    of 

26  Wyman,  Ad.  Law,  48.  Fox    v.    McDonald,    101    Ala.    51 ; 

20  State  v.  French,  141  Ind.  618;        State  v.  George,  22  Oregon,   142. 


384  PUBLIC    HEALTH   ADMINISTRATION 

his  duties,  and  served  until  notified  that  the 
senate  had  refused  to  confirm  his  appointment, 
it  was  held  that  he  must  be  deemed  to  have 
been  duly  and  legally  appointed,  and  entitled  to 
the  office  while  he  served.27 

Since  the  power  of  appointment  depends  upon 
statute,  it  naturally  follows  that  the  provisions  of  the 
statute  must  be  carefully  observed.  Thus,  an  appoint- 
ment of  a  health  officer  by  the  common  council  without 
the  nomination  of  the  mayor,  as  disposed  by  law,  is 
invalid; 2S  but  boards  appointed  by  the  mayor  under 
ordinances  not  specifying  manner  of  appointment  are 
to  be  deemed  legally  appointed.29  Under  the  general 
law  in  California  authorizing  a  county  to  make  and 
enforce  police  and  sanitary  laws  and  regulations, 
boards  of  supervisors  have  power  to  appoint  health 
officers  and  to  provide  for  the  payment  of  their  sal- 
aries.30 The  statutory  requirement  that  three  out  of 
the  five  members  of  a  local  board  of  health  shall  be 
physicians  does  not  prohibit  the  organization  of  a 
municipal  board  of  health  on  which  more  than  three  of 
the  five  members  are  physicians.31  A  law  providing 
for  the  appointment  of  health  officers  by  boards  of 
health,  and  for  the  payment  of  salary  is  mandatory.32 

§286.  Municipal  or  board  appointments.  By  the 
laws  of  some  states  certain  municipal  officers  are  said 
to  be  elected,  but  they  are  really  appointed  by  the 
mayor  and  common  council.  In  such  cases  the  mayor 
does  not  act  independently,  but  simply  as  the  presiding 

27  GouH  v.  United  States,  19  Ct.  so  Valle  v.  Shaffer,  81  Pac.  1028. 

of  Claims  (U.  S.),  593.  si  State  ex  rel.  Weber  v.  Kohnke, 

28Braman   v.    New   London,    74  31  So.  45. 

Conn.  695.  32  State   v.    Massillon,    24    Ohio 

29  Taunton  v.  Taylor,  116  Mass.  Cir.  Ct.  249. 
254. 


OFFICERS  385 

officer  of  the  council.  The  written  resolution,  duly 
entered  in  the  minutes  of  the  council,  has  been  con- 
sidered a  complete  appointment  even  though  the 
mayor  refused  to  attest  it.33  After  a  city  officer  has 
been  declared  duly  chosen  by  a  board  of  aldermen, 
and  the  declaration  has  been  recorded,  the  board  can- 
not at  any  adjourned  meeting,  held  the  next  day, 
reconsider  its  action  and  choose  another.34  So  too, 
after  having  confirmed  an  appointment,  the  council 
cannot  reconsider  its  action  and  refuse  to  confirm.35 
But  a  rule  regularly  adopted,  providing  for  a  reconsid- 
eration is  valid.36  When  an  appointment  is  once  made, 
no  subsequent  appointment  is  valid.37  An  office  once 
filled  cannot  be  declared  vacant  until  the  term  for 
which  the  appointment  is  made  has  expired,  or  the 
death,  resignation,  or  removal  of  the  person 
appointed.38  An  appointment  to  take  effect  at  some 
future  time  specified  is  valid.39  But  such  appointment 
made  by  outgoing  officers,  to  take  effect  after  the 
expiration  of  the  service  of  the  appointers,  is  not 
valid.40 

§287.  Appointment  implies  written  commission. 
An  appointment  to  be  complete  implies  a  written  com- 
mission from  a  person  authorized  to  issue  the  same,41 

33  People  v.  Stowell,  9  Abb.  N.  C.  38  Johnston  v.  Wilson,  2  N.  H. 
(N.  Y.)  456.  202. 

34  State  v.  Phillips,  79  Me.  506;  39  Smith  v.  Dyer,  1  Call  (Va.), 
also  State  v.  Barbour,  53  Conn.  76.  562 ;  Whitney  v.  Van  Buskirk,  40 

35  State   v.    Wadham,    64    Minn.  N.  J.  L.  463. 

318.  40  Ivy  v.  Lusk,  11  La.  Ann.  486; 

36  People  v.  Mills,  32  Hun,  459 ;  State  v.  Meehan,  45  N.  J.  L.  189 ; 
State  v.  Hamilton  Co.,  7  Ohio,  134.  People  v.  Eeid,  11  Colo.  141. 

37  Thomas   v.    Burrus,    23    Miss.  4i  Cooner  v.  Gilmer,  32  Cal.  75; 
550;  People  v.  Woodruff,  32  N.  Y.  Wood  v.  Cutter,  138  Mass.  149. 
355. 


386  PUBLIC  HEALTH  ADMINISTRATION 

and  evidence  of  the  acceptance  of  the  same  by  the 
appointee.42 

The  rule  above  given,  that  an  appointment  is  valid 
only  when  a  commission  is  issued  has  not  always  been 
strictly  followed.  "If  a  person  acts  notoriously  as  an 
officer  of  a  corporation,  and  is  recognized  by  it  as  such 
officer,  a  regular  appointment  will  be  presumed,  and 
his  acts  will  bind  the  corporation,  although  no  written 
proof  is,  or  can  be,  adduced  of  his  appointment."43 
The  appointment,  and  authority  of  a  municipal  officer 
may  be  presumed  by  the  recognition,  or  adoption  of 
the  work  of  such  officer.44  This  does  not  necessarily 
mean  that  such  an  officer  is  one  de  jure.  It  does  fol- 
low that  as  regards  the  public  such  an  officer's  acts 
must  be  regarded  as  those  of  a  true  official.  In  one 
of  the  early  New  York  cases  it  was  held  that  in  the 
absence  of  a  constitutional  or  statutory  requirement 
that  the  appointment  be  in  writing,  an  oral  appoint- 
ment was  sufficient.45  In  a  subsequent  case  it  was  held 
that  a  written  communication  to  the  council,  and  con- 
firmed by  the  council,  (though  such  confirmation  was 
not  necessary),  was  a  sufficient  commission,  though 
not  in  due  form.46  In  another  case  where  the  mayor 
nominated  a  candidate  orally  to  the  council,  and  the 
council  regularly  confirmed  the  same,  regularly 
recording  the  action  in  the  minutes  of  the  meeting,  it 
was  held  that  since  the  confirmation  was  not  required 
by  the  law,  the  action  was  a  nullity;  and  since  the  only 
act  of  appointment  was  the  oral  appointment  of  the 

42  People    v.    Willard,    44    Hun  44  Killey  v.  Forsee,  57  Mo.  390. 
(N.  Y.),  580.  45  People  v.  Murray,  5  Hun,  42. 

43  Dillon,  Munic.  Corp.  213,  cit-  46  People  v.  Fitzsimmons,  68  N. 
ing  Bank  of  U.  S.  v.  Danridge,  12  Y.  514. 

Wheat.  64. 


OFFICERS  387 

mayor,  it  violated  the  common  law  upon  the  subject, 
and  was  no  appointment.47  In  delivering  the  opinion 
in  this  case  Mr.  Justice  Allen  cited  Hunt  v.  Ellisden,48 
Curies'  Case,49  and  Craig  v.  Norfolk,50  which  held  that 
an  oral  appointment  is  invalid.  He  therefore  concluded 
that  since  by  the  common  law  the  act  was  invalid,  by 
implication  it  was  also  contrary  to  the  statute.  An 
appointment  is  not  complete  until  a  commission  has 
been  made  and  signed,  and  until  such  time  the  appoint- 
ment may  be  revoked.51 

§  288.  Commission  is  evidence  of  appointment.  The 
commission  is  not  the  appointment,  but  the  evidence 
of  the  appointment.52  It  is  not  necessary  that  the  com- 
mission shall  have  been  delivered.53  When  a  person 
has  been  nominated  by  the  President,  and  confirmed 
by  the  senate,  and  the  commission  has  been  signed 
and  sealed,  his  appointment  is  complete.  The  delivery 
of  the  commission  to  the  appointee  is  not  necessary 
to  his  investure  with  the  office.  He  may  be  required  to 
perform  certain  acts,  such  as  taking  the  oath  of  office, 
before  the  investure  of  office  is  complete,  but  the  deliv- 
ery of  the  commission  is  not  essential.54 

§  289.  Commission  best  evidence  of  appointment. 
Though  some  kind  of  a  written  commission  is  neces- 
sary for  a  valid  appointment,  that  commission  is  not 
the  appointment  itself,  but  the  evidence  of  appoint- 

*7  People  v.   Murray,    70   N.   Y.  54  Marbury       v.       Madison,       1 

521.  Cranch,  137;  U.  S.  v.  LeBaron,  19 

•*8  2  Dyer,   152.  How.  73;  Hill  v.  State,  1  Ala.  559; 

4»11  Coke,  2.  Jeter  v.  State,  1  McCord   (S.  C), 

sol  Mod.  122.  233;  State  v.  Lylies,  1  McCord  (S. 

si  Cooner  v.  Gilmer,  32  Cal.  75;  C),  238;  Justices  v.  Clark,"  1  T.  B. 

Wood  v.  Cutter,  138  Mass.  149.  Mon.    (Ky.)   82;  Johnston  v.  Wll- 

52  State  v.   Allen,  21  Ind.  516.  son,  2  N.  H.  202. 

53  Marbury       v.       Madison,       1 
Cranch,  137. 


388  PUBLIC    HEALTH   ADMINISTRATION 

ment,  and  generally  speaking  it  is  the  best  possible 
evidence.55  One  holding  an  office  by  virtue  of  a  com- 
mission must  show  that  the  person  making  such 
appointment,  and  signing  the  commission,  was  law- 
fully empowered  to  make  the  appointment.56 
In  a  case  where  the  constitution  declared  that 
the  appointment  should  be  made  by  the  Gov- 
ernor, and  the  general  assembly  assumed  to  make  a 
selection,  and  the  Governor  issued  a  commission  in 
which  it  was  stated  that  the  officer  was  appointed  by 
the  vote  of  the  general  assembly,  it  was  held  that  this 
was  not  an  appointment  by  the  Governor,  and  the 
appointment  was  therefore  void.57  So  also,  in  cases 
where  a  commission  is  issued  through  any  error,  as  for 
an  elective  office  when  a  commission  is  issued  to  one 
person  under  the  mistaken  idea  that  he  had  received 
the  highest  number  of  votes,  the  commission  is  void.58 
And  a  commission  which  was  issued  by  the  Governor, 
under  the  mistaken  supposition  that  there  was  a 
vacancy,  conferred  no  title.59 

§  290.  Time  for  appointment.  When  county  judges 
make  appointments  to  membership  in  boards  of 
health  they  may  exercise  their  discretion  in  filling 
vacancies  without  delay.60  Where  authority  is  given 
to  appoint  a  successor  "at"  the  expiration  of  an  offi- 

55  State  v.  Allen,   21   Ind.  516;  ss  State  v.  Johnson,  17  Ark.  407 ; 

U.    S.   v.    LeBaron,    19    How.    73;  Ewing  v.  Filley,  43  Pa.  384;  Kerr 

Allen  v.  State,  21  Ga.  217;  Carter  v.    Trego,    47    Pa.    292;    Low    v. 

v.  Sympson,  8  B.  Mon.  (Ky.)  155;  Towns,  8  Ga.  360;  Luzerne  Co.  v. 

Bank   of  U.   S.   v.   Dandridge,    12  Trimmer,  95  Pa.  97;  also  see  Har- 

Wheat.  64;  Callison  v.  Hedrick,  15  din  v.  Colquitt,  63  Ga.  588. 

Gratt.  (Va.)  244.  59  State  v.  McNeely,  24  La.  Ann. 

se  State  v.  Board  of  Health,  49  19. 

N.  J.  L.  349.  e°In    re    Board    of    Health,    64 

57  State  v.  Peele,  124  Ind.  515.  Hun,  634. 


OFFICERS  389 

cer's  term,  it  was  held  that  the  appointment  might  be 
made  at  or  near  the  time  of  the  expiration  of  the 
term.61  It  was  held  that  an  appointment  made  within 
six  months  of  a  specified  time  was  valid,  even  though 
the  statute  directs  the  Governor  to  make  the  appoint- 
ment "at  least  six  months"  before  that  time.62  In  a 
similar  manner  it  was  decided  that  a  county  treasurer 
was  validly  appointed  when  he  gave  a  bond  three  days 
afterward,  and  the  bond  was  accepted  and  approved  by 
the  commissioners,  even  though  when  the  appointment 
was  made  it  was  conditional  upon  the  giving  of  a  bond 
within  two  days.63 

' '  Where  a  statute  vested  the  appointing  power  in  the 
mayor  and  two  aldermen  of  a  city,  and  two  justices  of 
peace  of  the  county,  and  directed  that  it  should  be 
exercised  on  a  certain  day;  and  the  appointment  was 
made  clandestinely,  after  a  refusal  by  the  mayor  to 
inform  certain  aldermen  and  justices  of  the  peace  as 
to  the  hour  when  and  the  place  where  the  appointment 
would  be  made;  it  was  held,  that  this  was  not  such  an 
exercise  of  the  mayor's  discretion  as  would  satisfy 
the  law;  and  leave  was  granted  to  file  an  information 
in  the  nature  of  a  quo  warranto  against  the  officers  so 
appointed."64 

§  291.  Appointments  requiring  confirmation  made 
during  recess.  There  is  another  class  of  cases  in  which 
a  question  as  to  legality  of  appointment  may  arise, 
namely  in  those  in  which  the  appointment  requires 
confirmation  by  the  legislative  body.    In  the  state  of 

6i  People    v.    Blanding,    63    Cal.  es  State   v.   Eing,   29    Minn.    78, 

333.  83. 

62 1%  re  Census   Superintendent,  64  Throop,    Public    Officers,    94 ; 

15  B.  I.  614;  also  People  v.  Police  citing  Comm.  v.  Douglas,   1  Binn. 

Board,  46  Hun   (N.  Y.),  296.  77. 


390  PUBLIC    HEALTH   ADMINISTRATION 

New  York  the  constitution  provides  that  the  Governor 
may  temporarily  fill  a  vacancy  in  the  office  of  justice 
of  the  supreme  court,  by  the  advice  and  consent  of  the 
senate  "if  the  senate  shall  be  in  session,"  or  by  his  own 
appointment  if  the  senate  be  not  in  session.  The  senate 
adjourned  an  extraordinary  session  from  September  10 
to  November  20.  On  September  13  a  vacancy  occurred 
which  the  Governor  filled  on  the  21st.  The  question 
raised  was  whether  the  senate  was  then  in  session,  as 
within  the  meaning  of  the  constitution.  The  court  of 
appeals  held  that  the  appointment  was  valid,  for  the 
reason  that  when  the  sittings  of  the  body  were  ter- 
minated by  an  adjournment  of  months,  it  could  not  be 
said  to  be  in  session.  The  court  suggested,  but  did  not 
pass  upon,  the  question  whether  the  provision  in  the 
constitution  referred  to  any  other  than  the  regular 
sessions  of  the  senate  as  a  branch  of  the  legislature.65 
The  question  of  the  power  of  the  Governor  to  appoint 
during  a  recess  of  the  legislature,  when  the  statute  says 
that  the  appointment  shall  be  made  "by  and  with  the 
advice  and  consent  of  the  senate,"  is  quite  fully  con- 
sidered in  an  opinion  by  Attorney  General  Stead  of  Illi- 
nois.66 The  statute  says, 67  in  part :  ' '  The  Governor 
of  this  state,  by  and  with  the  advice  and  consent  of  the 
senate,  shall,  before  the  first  Monday  in  December, 
1881,  and  every  four  years  thereafter,  appoint  in  each 
county  in  this  state,  and  as  often  as  any  vacancy  may 
occur,  a  suitable  person  to  be  known  as  public  adminis- 
trator of  such  county,  who  shall  hold  his  office  for  the 
term  of  four  years  from  the  first  Monday  in  December, 

es  People  v.  Fancher,  50  N.  Y.  67  Eevised     Statutes,     Chap.     3, 

288.  Par.  44. 

6a  Eeport  of  the  Attorney  Gen- 
eral, 1910,  p.   172. 


OFFICERS  391 

1881,  or  until  his  successor  is  appointed  and  qualified. ' ' 
On  December  6,  1909,  the  Governor  appointed  one 
Tracy  to  the  office  of  public  administrator  of  Kankakee 
County,  for  four  years  from  date,  and  a  certificate  was 
made  out  and  issued  on  that  date.  The  senate  was  not 
then  in  session.  The  preceding  administrator  had 
neither  resigned,  died,  nor  been  removed,  but  he  was 
still  holding  the  office,  and  discharging  the  duties 
thereof.  The  county  judge  refused  to  permit  Mr. 
Tracy  to  qualify,  because  the  senate  had  not  concurred 
in  the  appointment  when  the  commission  was  made  out, 
or  when  said  Tracy  applied  to  qualify.  The  senate  met 
in  extraordinary  session  December  14,  1909,  and 
adjourned,  sine  die,  March  2, 1910.  Mr.  Tracy's  nomi- 
nation was  not  submitted  for  confirmation.  On  March 
3,  1910,  the  Governor  submitted  to  the  Attorney  Gen- 
eral for  opinion  three  questions.  First:  Can  the 
Governor  make  such  appointment,  and  issue  a  commis- 
sion during  a  recess  of  the  senate,  and  before  the  senate 
has  concurred  in  such  appointment?  Second:  Has  the 
county  court  the  right  to  question  the  validity  of  such 
appointment  when  asked  to  enter  an  order  fixing  a 
bond  of  such  appointee  ?  Third :  If  the  appointment 
of  December  6th  was  not  valid  because  it  was  not  sub- 
mitted to  the  senate,  can  the  Governor  reappoint  said 
Tracy? 

In  his  opinion  Mr.  Stead  said  that  so  far  as  he  was 
aware  the  questions  submitted  had  not  been  passed 
upon  by  the  courts  of  Illinois,  nor  by  those  of  other 
states.  He  then  says : 6S  "  The  law  is  well  settled  that 
an  office  does  not  become  vacant  on  the  expiration  of 
the  fixed  term  of  the  incumbent  of  the  office,  where, 

68  P.   173. 


392 


PUBLIC   HEALTH   ADMINISTRATION 


under  the  law,  he  holds  over  until  his  successor  is 
elected  or  appointed  and  qualified. " 60  Mr.  Stead  then 
proceeds  to  say  that  there  being  no  vacancy,  the 
appointment  must  be  considered  as  for  the  full  term, 
beginning  with  the  expiration  of  the  term  of  the  incum- 
bent then  in  office.  But  the  statute  did  not  give  to  the 
Governor  the  power  to  make  such  appointment  alone, 
but  only  "with  the  advice  and  consent  of  the  senate." 
The  original  appointment  was  therefore  illegal  and 
void,  and  the  county  court  was  justified  in  refusing  to 
treat  the  appointment  as  valid,  and  in  refusing  to  enter 
the  order  fixing  the  amount  of  the  bond.  As  supporting 
the  contention  that  the  Governor  could  not  issue  a  law- 
ful commission  without  the  consent  of  the  senate,  Mr. 
Stead  cites,  Marbury  v.  Madison; 70  Field  v.  People,71 
and  People  v.  0 'Toole,72  each  of  which  held  that  the 
chief  executive  could  not  act  alone,  but  that  it  must  be 
the  concerted  action  of  the  Governor  (President),  and 
the  senate. 

§  292.  Recess  appointments  must  be  submitted  for 
confirmation.  According  to  a  statute  in  California  an 
officer  held  over,  after  the  expiration  of  his  term,  until 
his  successor  qualified ;  and  a  person  appointed  to  fill  a 
vacancy  held  until  his  appointment  was  acted  upon  by 
the  senate.  It  was  held  that  having  made  an  appoint- 
ment to  fill  the  vacancy,  the  governor  could  not  revoke 
the  appointment,  but  must  submit  it  to  the  senate.73 
A  vacancy  which  occurred  during  a  session  of  the  legis- 


eo  People  v.  Forquer,  1  111.  104 
People  v.  Bissell,  49  Cal.  407 
People  v.  Hammond,  66  Cal.  654 
People  v.  Tyrell,  87  Cal.  475 
People  v.  Tilton,  37  Cal.  614 
People  v.  Osborne,  7  Colo.  605 
State   v.   Harrison,    113   Ind.   434 


People    v.     McAdoo,    110    N.    Y. 
Supp.  432. 

70  1  Cranch.  137. 

7i  2  Scam.   79. 

72  164  111.  344. 

73  People    v.    Cazneau,    20    Cal. 
504. 


OFFICERS  393 

lature  may  be  filled  by  appointment  under  the  provision 
which  permits  the  governor  to  appoint  during  recess 
of  the  legislature.74  The  provision  of  the  constitution 
which  requires  the  governor  shall  nominate  to  the 
senate  such  civil  officers  as  are  thus  to  be  appointed, 
"within  fifty  days  from  the  commencement  of  each  reg- 
ular session  of  the  legislature,"  does  not  apply  to  such 
offices  as  were  created  by  acts  passed  during  that  ses- 
sion of  the  legislature.75  A  municipal  officer  appointed 
by  the  mayor  temporarily  to  fill  an  office  during  the 
absence  of  the  regular  officer  (a  defaulter),  contended 
that  the  mayor  had  only  the  power  to  appoint  to  fill  a 
vacancy,  and  that  the  appointment  was  therefore  for 
the  remainder  of  the  full  term.  It  was  held  that  if  the 
mayor  did  not  have  the  power  to  appoint  temporarily 
his  action  was  a  nullity.76 

§  293.  Time  for  which  appointed.  Where  a  correct 
interpretation  of  the  charter  of  the  city  provided  that 
the  term  of  a  city  officer  was  two  years,  and  the  city 
council  appointed  a  man  for  one  year,  supposing  that 
one  year  was  the  correct  term,  it  was  held  that  the 
appointment  was  legally  for  two  years,  and  the  appoint- 
ment of  a  successor  at  the  end  of  one  year  was  nullity.77 
(§§314-316.) 

§  294.  Vote  must  show  approval.  A  case  in  Massa- 
chusetts centered  upon  the  vote  for  confirmation  of  a 
nomination  by  the  mayor.  The  statute  said  that, ' '  The 
mayor  shall  have  the  exclusive  power  of  nomination, 
subject  however  to  confirmation  or  rejection  by  the 
board  of  aldermen."    The  same  nomination  had  been 

74  State   v.    Kuhl,    51    N.    J.    L.  76  People  v.  Hall,  104  N.  Y.  170; 
191.  People  v.  Lord,  9  Mich.  227. 

75  Co.    Coins,   v.    Hellen,   72   Md.  77  Stadle*   v.   "Detroit.   1-2    Mich. 
603.  34G 


394  PUBLIC    HEALTH   ADMINISTRATION 

rejected  ten  times,  and  upon  being  made  again  the 
mayor  put  it  to  vote  in  this  form :  ' '  Shall  the  nomina- 
tion be  rejected?"  There  were  three  votes  for,  and 
three  against.  The  mayor  declared  the  nomination  not 
rejected,  and  the  nominee  appointed.  There  was  no 
objection  made  at  that  time,  and  the  officer's  bond  was 
approved  by  the  aldermen,  after  the  appointee  had 
taken  his  oath  of  office.  It  was  held  by  the  court  that 
if  the  nomination  was  not  confirmed  by  a  majority  vote 
of  those  voting  the  appointment  was  not  made,  and  the 
appointee  would  be  ousted  upon  quo  warranto.78 

§  295.  Action  of  majority.  The  English  rule  as  to 
whether  or  not  the  act  of  the  majority  concludes  the 
minority  is  thus  stated  by  Ch.  J.  Eyre : 79  "I  think  it 
is  now  pretty  well  established  that  where  a  number  of 
persons  are  entrusted  with  powers,  not  of  mere  private 
confidence,  but  in  some  respects  of  a  general  nature, 
and  all  of  them  are  regularly  assembled,  the  majority 
will  conclude  the  minority,  and  their  act  will  be  the 
act  of  the  whole. ' ' so 

The  American  rule  is  that  when  the  statutes  confer 
upon  three  or  more  persons  the  power  to  act  in  a  matter 
of  public  concern,  requiring  discretion  and  judgment, 
but  contain  no  directions  as  to  the  number  of  those  who 
may  exercise  the  power,  such  action  requires  the  pres- 
ence of  all  and  the  action  of  a  majority.81 

78  Com.  v.  Allen,  128  Mass.  308;       314;  Withnell  v.  Gartham,  6  T.  R. 
also    Baker    v.    Comrs.,    62    Mich.       (D.  &  E.)   388. 

327.  siMeehem,      Pub.      Off.      575; 

79  Grindley  v.  Barker,  1  Bos.  &  Throop,  Public  Officers,  106,  cit- 
Pul.  229.  ing:    Caldwell  v.  Harrison,  11  Ala. 

so  See  also,  Rex  v.  Whitaker,  9  755 ;  Pulaski  Co.  v.  Lincoln,  9  Ark. 

B.   &   C.   648;    Rex  v.   Beeston,   3  320;  Louk  v.  Woods,  15  111.  256; 

T.  R.    (D.   &  E.)    592;    Cortis  v.  Paola  R.  R.  Co.  v.  Anderson  Co.,  16 

Kent   Waterworks  Co.,   7  B.   &  C.  Kas.  302;  Merrill  v.  Berkshire,  11 


OFFICERS  395 

If  there  be  any  vacancies  upon  the  board,  it  has  been 
held  that  the  members  in  office  cannot  act,  even  though 
they  constitute  a  majority  of  the  full  board.82  But  if 
all  have  been  duly  convened  the  dissent  of  a  minority, 
or  their  withdrawal  or  refusal  to  be  considered  as  mem- 
bers of  the  board  will  not  affect  the  validity  of  the  acts 
of  the  majority.83  If  two  out  of  three  act  in  the  absence 
of  the  third,  his  subsequent  signature  to  the  instrument 
executed  by  them  will  not  cure  the  defect.84  Approval 
by  full  board  of  minutes  where  two  acted  will  not  cure 
defect.85  Where  a  statute  provides  that  a  majority 
may  act,  they  may  act  without  consultation  with  the 
minority.86  It  is  not  necessary  that  the  statute  should 
specifically  confer  upon  the  majority  the  power  to  act, 
even  without  notice  to  the  minority,  if  such  power  may 
be  reasonably  inferred  from  the  provisions,  or  the 
nature  of  the  power  conferred.87  The  right  of  a 
majority  to  act  in  the  absence  of  the  minority  is  thus 
stated  by  Judge  Emott:88    "The  rule  of  the  common 

Pick.    (Mass.)    268;    Williams    v.  599 ;  Schenck  v.  Peay,  1  Wool.  175. 

School  Dist.,  12  Met.  (Mass.)  497;  83  See  cases  above  cited. 

State  v.  Porter,  113  Ind.  79 ;  Scott  8*  Keeler  v.  Frost,  22  Barb.  400. 

v.   Detroit  Y.  M.   C.  A.,   1   Doug.  85  In  re  Palmer,  1  Abb.  Pr.  N.  S. 

(Mich.)    119;    State  v.   Smith,   22  (N.  Y.)   30. 

Minn.    218;    Jewett    v.    Alton,    7  86  Johnson    v.    Dodd,    56    N.    Y. 

N.  H.  253;  Charles  v.  Hoboken,  27  76;  People  v.  Batehelor,  22  N.  Y. 

N.  J.  L.  203;   Green  v.  Miller,  6  128;    Jefferson   Co.    v.    Slagle,    66 

Johns.     (N.    Y.)     39;    Cooper    v.  Pa.  St.  202;  Austin  v.  Helms,  65 

Lampeter,    8    Watts     (Pa.)     125;  N.  C.  560;  Walcott  v.  Walcott,  19 

Cassin    v.    Zavalla,    70    Tex.    419;  Vt.  37. 

Schenck  v.  Peay,  1  Woolw.  (U.  S.)  8?  Pulaski  Co.  v.  Lincoln,  9  Ark. 

175;    Curtis    v.    Butler,    24    How.  320;  State  v.  Wilkesville,  20  Ohio 

435;  Cooley  v.  O'Connor,  12  Wall.  288;  People  v.  Nichols,  52  N.  Y. 

391;    First   Nat'l  Bank  v.   Mount  478;    Keeler    v.    Frost,    22    Barb. 

Tabor,  52  Vt.  87;  Soens  v.  Bacine,  400;  People  v.  Williams,  36  N.  Y. 

10  Wis.  271;   and  numerous  other  441. 

cases.  88  Horton  v.  Garrison,  23  Barb. 

82  Cassin    v.    Zavalla,     70    Tex.  176,   179. 
419;  Williamsburg  v.  Lord,  51  Me. 


396  PUBLIC   HEALTH   ADMINISTRATION 

law,  which  is  now  declared  by  statute,  that  where  an 
authority  is  to  be  exercised  by  more  than  one  officer, 
they  must  all  concur  in  its  exercise,  or  all  meet  and 
consult  and  a  majority  agree  to  act,  is  subject  to  the 
necessary  qualification,  that  if  one  is  notified  to  attend 
and  refuses,  it  is  the  same  as  if  he  had  attended  and  dis- 
sented from  the  act. ' ' 89 

Under  the  statutory  provisions  requiring  the  pres- 
ence of  all  of  the  three  members  of  the  executive  com- 
mittee of  the  State  Board  of  Health  to  make  a  valid 
quarantine  order,  an  order  signed  by  two  members, 
that  is  by  a  majority,  is  invalid  in  the  absence  of  proof 
that  all  of  the  members  were  present  when  the  order 
was  made.90 

§296.  Vote  need  not  show  quorum.  The  presence 
of  a  quorum  is  not  required  to  be  shown  by  the  votes 
cast.  When  a  majority  of  the  board  are  present,  if  a 
majority  of  those  present  decline  to  vote,  or  vote  in  a 
different  manner  than  that  prescribed  by  law,  as  viva 
voce  when  the  statute  requires  vote  by  ballot,  a 
minority,  composed  even  of  a  single  member,  is  suffi- 
cient to  make  an  appointment.91 

§297.  Sufficiency  of  notice.  "As  to  the  sufficiency 
of  the  notice  required,  in  order  to  enable  the  majority 
to  act  in  the  absence  of  the  minority,  it  seems  that  a 
reasonable  notice  suffices ;  and  whether  a  notice  is,  or  is 
not  reasonable,  will  depend  upon  the  circumstances  of 

89  Also  see  McCoy  v.  Curtice,  9  201 ;  People  v.  Batchelor,  22  N.  Y. 

Wend.   17;   Woolsey  v.   Tompkins,  128;   People  v.  Nichols,  52  N.  Y. 

23  Wend.  324;  Perry  v.  Tynan,  22  478. 

Barb.    137;    People  v.   Walker,  23  so  Wilson  v.  Ala.  Ga.  S.  Ry.  Co., 

Barb.   304;    In  re  Church   St.,  49  77  Missi  714,  28  S.  567. 

Barb.  455;   People  v.  Supervisors,  91  Comm.     v.     Bead,     2     Ashm. 

10  Abb.   Pr.   233;    Gildersleeve  v.  (Pa.)  261. 
Board  of  Education,  17  Abb.  Pr 


OFFICERS  397 

each  particular  case."92  A  member  who  is  present 
and  participates  in  a  meeting  is  thereby  estopped  from 
objecting  to  a  special  meeting  on  the  ground  of  insuffi- 
cient notice.03  A  body  having  established  rules  or  by- 
laws, with  stated  times  and  places  of  meetings  may 
make  appointments  at  such  regular  meetings  without 
special  notice  to  absentees.94  A  board  having  ap- 
pointed a  day  for  choosing  a  city  officer,  and  at  an  inter- 
vening meeting  rescinded  the  resolution  and  proceeded 
to  make  the  selection,  some  of  the  aldermen  being 
absent,  and  not  having  had  notice  of  the  change,  it  was 
held  that  the  action  was  void.95  Where  the  day  of  the 
meeting  of  the  Mayor  and  council  is  fixed  by  statute, 
half  of  the  aldermen  may  not  defeat  an  election  by 
absenting  themselves,  thus  to  leave  the  board  without 
a  quorum.96  Where  the  statute  directed  the  township 
trustees  of  a  county  to  meet  on  a  specified  day  and 
appoint  a  county  superintendent,  but  gave  no  direction 
as  to  the  requisite  number  to  form  a  quorum,  or  the 
manner  of  election ;  and  on  the  given  day  ten  trustees 
met  and  ballotted  unsuccessfully  until  noon,  and  then 
adjourned  to  meet  on  the  day  following;  when  only  five 
met  and  made  the  selection ;  it  was  held  that  the  com- 
mon law  rule  requires  the  presence  of  a  majority  to 
render  the  action  valid,  and  the  appointment  was  there- 
fore void.97  Where  the  town  officers  met  on  the  day 
specified  by  statute  and  selected  a  town  treasurer,  and 

saThroop,   Public   Officers,    113,  128;  Gildersleeve  v.  Board  of  Edu- 

citing    Whiteside    v.     People,     26  cation,  17  Abb.  Pr.  201. 

Wend.  634,  reversing  23  Wend.  9 ;  95  People  v.  Batchelor,  22  N.  Y. 

People  v.  Batchelor,  28  Barb.  310;  128. 

In  re  Church  Street,  49  Barb.  455.  so  Kimball  v.  Marshall,  44  N.  H. 

93  Mitchell   v.    Horton,    75    Iowa  465. 

271.  97  state  v.  Porter,  113  Ind.  79. 

94  People  v.  Batchelor,  22  N.  Y. 


398  PUBLIC   HEALTH    ADMINISTRATION 

then  adjourned  to  a  certain  day  to  enable  the  appointee 
to  accept  or  decline  the  appointment;  and  on  the  day 
appointed  he  appeared  and  declined  the  appointment, 
and  the  town  officers  then  adjourned  to  another  certain 
day  and  on  that  day  appointed  another  man;  it  was 
held  that  the  last  appointee  was  lawfully  appointed, 
and  that  the  former  incumbent  did  not  hold  over.98 

§  298.  Appointment  by  two  or  more  bodies.  ' '  Where 
the  power  of  appointment  to  an  office  is  conferred  by 
statute  upon  two  or  more  bodies,  and  no  provision  for 
a  quorum  is  made,  nor  is  it  provided  that  they  shall 
act  separately,  the  rule  is  that  all  the  bodies  must  meet 
together  for  consultation,  or  all  must  be  notified  so  to 
meet;  and  thereupon  if  the  majority  of  those  present 
constitute  a  majority  of  all  the  members  of  all  the 
bodies,  they  may  proceed  to  make  the  appointment. ' ' " 
But  even  when  the  law  requires  a  joint  ballot,  an 
appointment  by  ballot  of  the  separate  bodies  is  suffi- 
cient to  give  color  of  office.100  Where  the  statute  gives 
the  power  to  appoint  to  two  bodies,  specifying  that 
when  they  disagree  they  shall  meet  and  make  the 
appointment  by  joint  ballot,  the  failure  of  one  body 
to  nominate  is  the  same  as  a  disagreement,  and  the 
appointment  must  be  made  by  joint  ballot.1  If  after 
so  meeting  in  joint  session  to  make  an  appointment, 
and  the  smaller  body,  finding  itself  in  the  minority, 
withdraws;  and  the  larger  body,  having  present  a 
majority  of  the  combined  joint  meeting  proceeds  to 

98  Carter  v.  McFarland,  75  Iowa  Canniff  v.  Mayor,  4  E.  D.  Smith, 

196.  430;  Davenport  v.  Hull,  IS  Wend. 

99Throop,  Pub.  Off.   116,  citing  510. 

People  v.  Walker,  23   Barb.   304;  "<>  Belfast    v.    Morrell,    65    Me. 

Gildersleeve    v.    Board    of    Educa-  580. 

tion,  17  Abb.  Pr.   201 ;   Comm.  y.  i  Ex  parte  Humphrey,  10  Wend. 

Hargest,  7  Pa.  County  Court,  333;  613. 


OFFICERS  399 

make  an  appointment,  it  was  held  that  the  appointment 
was  valid.2 

§  299.  Appointive  power  once  used  is  exhausted. 
Whenever  the  appointive  power,  either  of  an  officer 
or  of  a  board  has  been  legally  used,  no  subsequent 
appointment  can  be  made  until  a  vacancy  exists  by 
reason  of  the  expiration  of  the  term  for  which  appoint- 
ment was  made,  or  by  the  death,  resignation,  or  removal 
of  the  appointee.3  Where  an  appointment  is  complete, 
and  the  incumbent  is  removable  only  "for  cause,"  the 
appointing  power  has  no  authority  to  revoke  a  commis- 
sion, nor  to  rescind  an  appointment.4  But  if  the 
appointment  was  illegally  made,  either  as  to  manner,  or 
by  officers  not  having  authority  to  make  the  appoint- 
ment, another  appointment  may  lawfully  be  made.5  A 
ballot  having  been  taken  and  announced  cannot  be 
rescinded  by  resolution,  and  the  person  so  appointed 
was  held  to  have  been  legally  appointed.6  But  if  the 
result  of  the  ballot  has  not  been  announced,  though 
counted,  a  second  appointment  will  be  valid.7  Where 
the  body  has  a  general  rule  providing  for  reconsidera- 
tion, a  vote  taken  and  recorded,  may  at  a  later  meeting 
be  reconsidered,  and  another  appointment  be  lawfully 
made.8 

2  Whiteside  v.  People,  26  Wend.  s  State  v.  Peele,  124  Ind.  515; 
634;  Kimball  v.  Marshall,  44  N.  H.  Commissioners  v.  Philadelphia 
465.  Commrs.,   5  Binn.  534. 

3  Thomas    v.    Burrus,    23    Miss.  6  State  v.  Barbour,  53  Conn.  76 ; 
550 ;  People  v.  Woodruff,  32  N.  Y.  State  v.  Phillips,  79  Me.  506. 
355;   Johnson  v.  Wilson,  2  N.  H.  7  Baker  v.   Cushman,   127   Mass. 
202;  People  v.  Bissell,  49  Cal.  407.  105;  Putnam  v.  Langley,  133  Mass. 

*  Ewing    v.    Thompson,    43    Pa.       204. 
372;    State  v.   Love,   39   N.   J.  L.  « People  v.   Mills,  32  Hun,  459. 

14;  People  v.  Stowell,  9  Abb.  N. 
C.  456;  Marbury  v.  Madison,  1 
Cranrh,   137. 


400  PUBLIC    HEALTH   ADMINISTRATION 

§  300.  Appointment  of  self.  It  is  sometimes  neces- 
sary for  a  board  to  appoint  one  of  its  own  members  to 
a  position.  A  vote  of  an  authorized  committee,  electing 
the  clerk  as  city  engineer,  duly  recorded  and  signed  by 
him  as  clerk  was  declared  valid,  and  sufficient  to  take 
the  appointment  out  of  the  statute  of  frauds.9  But 
appointment  of  one 's  self  to  office  is  contrary  to  public 
policy,  and  where  a  board  is  to  make  the  appointment, 
and  they  appoint  one  of  their  own  members,  and  owing 
to  division  the  candidate 's  own  vote  was  necessary  for 
his  election,  it  was  held  that  the  appointment  was 
void.10 

Under  a  city  ordinance  providing  for  the  appoint- 
ment of  a  quarantine  physican  by  the  local  board  of 
health  the  board  could  not  lawfully  and  properly  elect 
one  of  themselves  to  this  office.  The  ordinance,  by 
requiring  that  he  shall  be  subject  to  the  orders  of  the 
board,  contemplates  that  he  shall  not  be  a  member.  His 
charges  are  to  be  only  such  as  the  board  approves.  His 
personal  interest  in  these  charges  is  inconsistent  with 
the  proper  performance  as  a  member  of  the  board  of 
health  to  fix  their  amount  in  the  interest  of  the  public 
and  the  protection  of  the  patients.  Such  appointment 
was  therefore  contrary  to  public  policy,  and  the  mayor 
was  upheld  in  removing  the  members  of  the  board  of 
health  for  making  such  appointment.11 

§301.  Appointments  by  outgoing  officers.  It  is 
manifestly  contrary  to  public  policy  for  an  outgoing 

9  Chase     v.     Lowell,     7     Gray  «  Gaw    v.    Ashley,    195    Mass. 

(Mass.)   33.  173.      Also,  Ft.  Wayne  v.  Eosen- 

io  People   v.   Thomas,    33   Barb,  thai,    75    Ind.    156;    Spearman    v. 

287;   State  v.  Hoyt,  2  Oreg.  246j  Texarkana,  24  S.  W.  883.    But  see 

See  also  Sloan  v.  Peoria,  106  Ills.  St.  Johns  v.  Supervisors,  70  N.  W. 

App.  151.  131. 


OFFICERS  401 

officer  to  appoint  subordinates  for  his  successor. 
Though  it  is  a  duty  to  make  appointments  to  fill 
vacancies,  the  retiring  officer  may  not  make  appoint- 
ments to  positions  which  will  not  be  vacant  during  the 
terms  of  the  appointors.12  Where  a  county  commis- 
sioner whose  term  had  expired  the  night  before,  and 
whose  successor  had  been  elected  and  qualified,  took 
part  in  the  appointment  of  a  county  treasurer,  it  was 
held  that  therefore  the  appointment  was  void.13 

§  302.  Municipal  authority  to  create  offices  and  make 
appointments.  By  the  common  law  a  city  has  the 
power  to  create  such  officers  as  shall  seem  necessary 
for  conducting  the  business  of  the  city.  Such  civil 
offices  must  be  of  very  limited  authority  and  jurisdic- 
tion. By  the  general  rules  governing  the  relationship 
between  the  city  and  the  state,  the  city  may  not  create 
any  office,  nor  impose  powers  and  duties,  contrary  to 
the  general  statutes  of  the  state;  and  the  state  may 
at  any  time  nullify  the  act  of  the  city  by  state  legisla- 
tion. The  city  has  no  power  to  create  any  office  which 
is  not  authorized  by  the  state.  This  authorization  may 
be  general,  rather  than  specific.  Formerly  all  health 
administration  was  local  in  character.  Local  health 
officials  were  therefore  recognized  in  the  common  law. 
In  addition,  under  the  general  powers  given  to  the  city 
to  preserve  the  health  of  the  citizens,  it  would  therefore 
be  lawful  for  a  city  to  create  such  offices  of  health  as 
might  seem  necessary,  even  though  power  to  create 
offices  of  health  be  not  distinctly  given  by  the  state. 
The  power  is  implied.    In  creating  offices  the  city  has 

12  State  v.  Meehan,  45  N.  J.  L.  is  Sogers  v.  Buffalo,  123  N.  Y. 

189;   People  v.   Blanding,  63  Cal.       173. 
333. 


402  PUBLIC  HEALTH  ADMINISTRATION 

full  authority  to  determine  by  whom  appointments 
shall  be  made,  for  what  time,  for  what  duties,  and  how 
paid.  The  city  may  at  any  time  abolish  an  office  so 
created.14 

§303.  Appointments  of  two  or  more  for  unspeci- 
fied class  or  district.  It  sometimes  happens  that  an 
appointing  body  has  to  elect,  that  is,  in  reality  appoint, 
two  or  more  officers  of  equal  rank  and  designation,  but 
for  different  term,  or  class,  or  for  different  districts, 
the  districts  being  known  by  number.  When  the  vote 
is  not  distinctly  announced  beforehand  as  for  a  given 
term  or  district,  it  has  been  held  that  the  one  first 
chosen  shall  be  deemed  appointed  for  the  first  class  or 
district,  and  others  in  order  to  other  classes  or  dis- 
tricts ;  but  if  both  be  elected  on  one  ballot  the  person 
whose  name  appears  first  on  the  record  shall  be  deemed 
appointed  for  the  first  class  or  district.15  It  is  evident 
that  resort  to  this  ruling  is  undesirable,  and  that  it 
should  be  distinctly  understood  before  a  ballot  be  taken 
what  position  is  about  to  be  filled.  In  case  that  there 
be  two  vacancies  to  be  filled,  that  which  has  longest 
existed  should  be  first  filled.  Suppose  that  A  be 
appointed  to  a  certain  office,  presumably  in  conformity 
with  law,  and  enter  upon  the  discharge  of  his  office. 
Later,  and  before  the  expiration  of  the  term  of  B  in 
a  corresponding  office,  with  same  title,  suppose  that 
G  be  appointed  to  the  office  by  name  without  designat- 
ing the  term.  But  before  the  expiration  of  the  term  of 
B  suppose  that  it  be  determined  that  A  was  not  legally 
appointed;  apparently,  under  the  ruling  in  People  v. 

I*  Dillon,  Munic.  Corp.  206,  207.      Pr.  (N.  Y.)  404;  People  v.  Super- 
is  People   v.    Kneissel,   58    How.       visors,  20  N.  Y.  252. 


OFFICERS  403 

Supervisors,16  it  would  be  held  that  C  would  take  the 
unexpired  term  which  was  being  occupied  by  A,  even 
though  when  he  was  appointed  it  was  supposed  that  he 
would  succeed  to  the  long  term.  In  other  words,  of  two 
undesignated  officers,  the  term  of  the  one  first 
appointed  should  expire  before  that  of  subsequent  ap- 
pointees. 

§  304.  Officers  of  health  appointed,  not  elected.  It 
will  perhaps  be  noticed  that  in  this  discussion  little  has 
been  said  relative  to  elective  officers.  Neither  have  all 
the  possible  phases  of  appointments  been  covered.  So 
far  as  I  am  aware,  the  officers  of  public  health  admin- 
istration are  always  appointed,  in  this  and  foreign 
countries.  They  never  should  be  elected,  and  there  is 
little  probability  that  they  will  be.  The  laws  govern- 
ing elections  are  therefore  of  interest  in  public  health 
administration  only  secondarily,  as  determining  the 
right  of  elective  officers  to  make  appointments.  On 
the  other  hand,  an  attempt  has  been  made  to  select 
from  the  decisions  relative  to  the  power  of  appoint- 
ment such  as  might  have  a  bearing  upon  a  possible 
appointment  of  health  officers.  Much  may  depend  upon 
the  legality  of  appointment,  and  one  may  easily  err  in 
supposing  himself  an  officer  de  jure. 

§305.  Eligibility  for  appointment — Citizenship. 
Having  decided  who  shall  make  an  appointment,  and 
how  it  may  be  accomplished,  the  next  question  which 
arises  is,  Who  are  eligible  for  appointment?  (§  126.) 
At  the  very  beginning  of  the  answer  to  this  question 
one  is  met  by  the  distinction  between  an  appointment 
to  office  and  an  employment.  There  is  nothing  in 
nature  or  law,  aside  from  the  statutes,  which  would  in 

16  20  N.  Y.  252. 


404  PUBLIC    HEALTH   ADMINISTRATION 

any  way  interfere  with  employing  the  best  man  avail- 
able for  a  position,  irrespective  of  his  citizenship.  In 
fact,  such  a  course  is  highly  commendable.  But  to  an 
officer  the  people  resign  a  portion  of  their  sovereign 
authority.  It  would  be  beyond  belief  that  any  self- 
respecting  nation  would  permit  a  resignation  of 
sovereign  authority  within  its  own  bounds  to  any 
foreign  power,  except  in  such  reciprocal  limited  areas 
as  are  used  for  diplomatic  service.  To  appoint  to  an 
office  one  who  is  not  a  citizen,  one  who  owes  allegiance 
to  another  nation,  is  practically  to  surrender  such 
authority  to  the  foreign  power.  A  fundamental  prin- 
ciple therefore  is  that  an  officer  must  be  a  citizen.  Thus 
it  was  held  that  officers  appointed  by  the  State  Board 
of  Health  for  towns  must  be  residents  of  the  town  for 
which  appointed.17  This  seems  to  be  an  extreme  view, 
and  not  necessarily  for  the  greatest  efficiency,  though 
endorsed  by  legal  principles.  If  the  local  health  officer 
be  really  a  state  officer,  and  appointed  by  a  state  board, 
the  necessity  of  local  residence  does  not  seem  emphatic. 
On  the  other  hand,  the  city  physician  who  is  not  a  mem- 
ber of  the  board  of  health  is  simply  the  servant  of  the 
city,  and  though  called  an  officer  it  was  held  that  the 
place  could  be  filled  by  an  alien.18 

Exactly  what  shall  be  the  definition  of  the  limits  of 
citizenship  must  be  left  to  enactment,  either  in  the 
constitutions,  or  statutes.  It  may  be  easier  to  acquire 
citizenship  in  one  jurisdiction  than  in  another.  Citizen- 
ship requires,  ordinarily,  that  in  acquiring  that  status 
in  one  jurisdiction  it  must  be  relinquished  in  the  former 
residence.    In  moving  from  one  ward  to  another,  one 

17  Nay  v.  Underbill,  42  Atl.  610. 
is  Attorney  General  v.   McCabe, 
172  Mass.  417. 


OFFICERS  405 

country  to  another,  or  one  state  to  another  in  the 
nation,  the  fact  of  such  removal,  and  the  nonexercise 
of  the  rights  of  citizenship  in  the  former  residence  is 
generally  deemed  sufficient  to  transfer  citizenship  to 
the  new  residence.  As  to  the  time  of  such  residence 
necessary  in  the  new  domicile,  that  is  a  matter  to  be 
fixed  by  the  statutes,  and  it  may  be  varied  by  subse- 
quent enactment.  In  coming  from  a  foreign  country 
citizenship  is  acquired  by  judicial  proceedings  in  which 
the  former  allegiance  is  formally  resigned.  In  one 
case  it  was  held  that  the  fact  that  a  candidate  was  not 
a  citizen  did  not  prohibit  him  from  election  to  office. 
The  conditions  were  peculiar.  By  the  constitution  of 
Indiana  it  was  provided  that  "No  person  shall  be 
elected  or  appointed  as  a  county  officer,  who  shall  not 
have  been  an  inhabitant  thereof  during  one  year  next 
preceding  his  appointment, ' '  and  the  fact  that  a  candi- 
date who  had  resided  in  the  county  for  the  requisite 
time,  and  under  the  constitution  was  a  voter,  made  him 
eligible,  though  he  had  not  been  naturalized.19  So  also 
the  fact  that  a  candidate  had  only  been  naturalized  two 
months,  though  he  had  resided  in  the  county  a  full 
year,  was  no  bar  to  his  election.20  But  if  he  have  the 
power  of  voting,  the  delegation  of  authority  is  not 
alienated  in  giving  him  the  office.  "The  word  inhab- 
itant means  one  who  dwells  or  resides  permanently  in 
a  place,  or  who  has  a  fixed  residence,  as  distinguished 
from  an  occasional  lodger  or  visitor.  A  citizen  is  a 
native  or  naturalized  person."21  As  a  general  rule, 
however,  an  alien  may  not  hold  a  public  office.22 

i»  McCarty   v.    Froelke,   63    Ind,  21  State  v.  Kilroy,  86  Ind.   118. 

507.  22  state  v.  Smith,  14  Wis.  497; 

20  State  v.  Kilroy,  86  Ind.   118.      State  v.  Murray,  28  Wis.  96. 


406  PUBLIC   HEALTH   ADMINISTRATION 

For  this  reason,  and  that  the  fact  of  residence  and 
citizenship  may  be  clear,  it  is  customary  that  state  con- 
stitutions require  a  residence  of  a  year  next  preced- 
ing election  or  appointment  to  public  office.  A  resident 
of  another  state  may  not,  therefore,  be  lawfully  ap- 
pointed as  an  officer  in  the  health  service  of  a  state, 
though  he  may  be  employed  in  such  service.  As  an 
employee  he  has  no  sovereign  power.  Disregard  of 
this  principle  has  sometimes  brought  disappointment. 
Officers  have  been  selected  for  their  fitness,  and  hav- 
ing relinquished  former  positions  they  find  that  they 
may  not  lawfully  enter  the  new  places  until  after  the 
expiration  of  the  stipulated  period  of  time.  Where  it 
was  shown  that  an  appointee  had  intended  to  make 
Milwaukee  his  residence,  without  claiming  that  he  had 
actually  been  there  continuously,  that  was  sufficient  to 
comply  with  the  provision  that  a  commissioner  of 
health  shall  have  resided  in  the  city  continuously  at 
least  one  year  prior  to  his  appointment.23 

§  306.  Natural  qualifications.  By  the  common  law 
of  England,  as  adopted  by  the  people  of  the  United 
States  there  is  a  recognition  of  certain  natural  quali- 
fications or  disqualifications.  It  is  evident  that  a 
person  of  unsound  mind  is  incompetent  to  hold  office. 
So,  where  the  office  is  vested  with  discretion,  and 
where  its  exercise  requires  the  exercise  of  judgment, 
a  person  of  immature  mind  is  disqualified ;  but  in  min- 
isterial duties  only,  a  minor  who  is  otherwise  qualified, 
may  take  office.  While  by  the  common  law  women  have 
been  barred  from  holding  legislative  or  judicial  posi- 
tions,24 ' '  The  common  law  of  England,  which  was  our 

23  Kempster    v.    Milwaukee,    97      Conn.  131,  and  Matter  of  Goodell, 
Wis.  345.  48  Wis.  693. 

24  But    see    Matter    of    Hall,    50 


OFFICERS  407 

law  upon  the  subject,  permitted  a  woman  to  fill  any 
local  office  of  an  administrative  character,  the  duties 
attached  to  which  were  such  that  a  woman  was  compe- 
tent to  perform  them. ' ' 25  On  this  basis  women  have 
been  permitted  to  occupy  many  offices.  It  is  compe- 
tent for  the  Governor  to  appoint  women  as  members 
of  the  State  Board  of  Health.26 

There  is  sometimes  a  necessary  conflict  between  two 
offices.  Under  such  conditions  it  is  manifestly  im- 
proper, and  it  would  so  be  held  by  the  court,  to  attempt 
to  thus  unite  them  in  one  person.  By  the  general  rule, 
therefore,  acceptance  of  a  second  office  incompatible 
with  the  first,  vacates  the  first  office.27    (§  309.) 

§  307.  Educational  qualifications.  Aside  from  any 
special  requirement  as  to  qualifications  for  office  to  be 
found  in  enactments,  by  the  common  law  a  man  should 
have  a  training  or  education  which  will  fit  him  for  the 
position  to  which  he  may  be  elected  or  appointed.  Once 
again  we  must  go  back  to  the  old  writers.  "  If  an  office, 
either  of  the  grant  of  the  king  or  subject,  which  con- 
cerns the  administration,  proceeding,  or  execution  of 
justice,  or  the  king's  revenue,  or  the  commonwealth,  or 
the  interest,  benefit,  or  safety  of  the  subject,  or  the 
like ;  if  these,  or  any  of  them  be  granted  to  a  man  that 
is  inexpert,  and  hath  no  skill  and  science  to  exercise 
or  execute  the  same,  the  grant  is  merely  void,  and  the 
party  disabled  by  law,  and  incapable  to  take  the  same, 
pro  commodo  regis  et  populi;  for  only  men  of  skill, 
knowledge,  and  ability  to  exercise  the  same,  are  capable 
to  serve  the  king  and  his  people.  "2S    While  this  rule 

25  Opinion  of  Judges,  115  Mass.  27  Mechem,  Pub.  Off.  420,  citing 

602.  cases. 

2«  Opinion  of  Justices,  136  Mass.  28  Bacon,  Abbr.  Titl.  Offices  and 

578.  Officers,  I,  citing  cases. 


408  PUBLIC   HEALTH   ADMINISTRATION 

has  not  been  frequently  applied  in  this  country,  and 
its  application  is  hedged  about  with  difficulties,  it  has 
been  used,  as  when  an  interpreter  was  removed  from 
his  position  in  one  of  the  New  York  city  courts.29  It 
would  be  well  if  sometimes  more  attention  were  paid  to 
the  provisions  of  this  common  law  restriction,  espe- 
cially in  making  appointments  pertaining  to  work 
requiring  a  special  or  technical  training.  For  example, 
the  head  of  a  state  department  of  health  should  be  one 
thoroughly  versed  in  the  science  of  preventive  medi- 
cine, and  that  includes  a  vast  field  beyond  the  educa- 
tion which  fits  one  for  the  practice  of  medicine.  On  the 
other  hand,  there  is  much  in  the  education  of  a  prac- 
ticing physician  or  surgeon  which  has  only  a  very 
remote  application  in  public  sanitation.  In  conse- 
quence a  man  may  be  an  expert  practioner,  but  utterly 
incompetent  as  a  health  official;  yet  it  is  the  ordinary 
course  for  appointing  officers  in  selecting  their  health 
officials  to  pick  their  men  according  to  standing  as 
physicians.  Far  more  competent  sanitarians  might  be 
frequently  found  among  the  engineering  profession 
than  among  physicians.  In  fact,  much  of  the  effective 
work  in  preserving  the  public  health,  perhaps  the  large 
percentage,  will  be  found  to  center  on  engineering 
problems,  for  which  the  average  practicing  physician 
is  utterly  incompetent.  Problems  of  drainage;  sewage; 
waste  disposal,  including  the  collection,  transportation 
and  conversion  or  destruction  of  garbage,  litter  and 
stable  waste;  water  supplies,  including  purification 
and  problems  of  construction;  construction  of  build- 
ings for  various  purposes;  manufacture,  transporta- 

29  Conroy  v.  Mayor,  6  Daly,  490, 
affirmed,  67  N.  Y.  610. 


OFFICERS  409 

tion,  and  storage  of  food  products;  elimination  of 
domestic  pests; — all  of  these  are  much  more  closely 
connected  with  the  science  of  engineering  than  with 
that  of  medical  and  surgical  practice.  This  cannot  too 
strongly  be  impressed  upon  the  minds  of  those  respon- 
sible for  appointments  to  public  health  positions. 

It  was  contended  that  the  health  commissioner  of 
St.  Louis  was  disqualified  from  sitting  as  a  member 
of  the  board  of  health,  when,  before  the  board  met,  in 
the  written  notice  issued  by  him  to  the  relators,  call- 
ing them  to  appear  before  the  board  to  answer  to  the 
charge  as  to  their  works  being  a  nuisance,  he  stated 
that  in  his  opinion  the  works  as  operated  constituted 
a  nuisance  and  were  detrimental  to  the  public  health. 
The  court  did  not  agree  that  proceedings  before  the 
board  should  be  conducted  with  an  impartiality,  and 
absence  of  preconceived  opinions  as  would  be  required 
in  a  court  trial.  The  competent  man  must  have  an 
opinion  when  a  matter  is  brought  before  him,  and  to 
agree  to  the  contention  would  require  incompetent  offi- 
cers.30 

The  common  law  requirement  for  educational  quali- 
fication as  a  requisite  for  appointment  to  office,  though 
not  clearly  perceived  generally,  is  realy  the  basis  of 
civil  service  requirements,  and  it  is  customary  for 
those  in  charge  of  such  service  to  examine  as  to  partic- 
ular fitness  for  special  positions. 

§  308.  Legislative  restrictions.  It  is  usual  for  gov- 
ernmental bodies  to  enact  certain  other  restrictions 
relative  to  election  or  appointment  to  office,  and  the 
basis  of  these  will  be  found  in  the  common  law,  ampli- 

30   State  ex  rel.  Parker-Washing- 
ton Co.  v.  St.  Louis,  207  Mo.  354. 


410  PUBLIC   HEALTH   ADMINISTRATION 

fying,  or  more  definitely  stating  those  requirements. 
Such  restrictions  are  found  in  the  general  statements 
in  the  various  constitutions  and  in  the  enacted  statutes. 
In  addition  to  the  general  restrictions,  it  is  common  in 
acts  providing  for  certain  offices  to  place  thereon  spe- 
cial restrictions;  for  example,  in  an  act  providing  for 
appointing  a  board  of  examiners  for  license,  it  is  the 
rule  that  the  act  specifies  that  the  members  of  the 
board  shall  be  selected  from  those  who  are  engaged  in 
the  same  profession.  It  would  be  manifestly  improper 
that  a  board  of  architect  examiners  be  picked  from  the 
legal  or  medical  professions.  Statutes  making  these 
definite  restrictions,  if  general,  and  based  upon  reason- 
able ideas,  will  be  sustained. 

Statutes  and  constitutions  frequently  make  a  defi- 
nite age  limit  for  appointments,  following  the  example 
set  in  the  Constitution  of  the  United  States.  A  repre- 
sentative in  Congress  must  be  twenty-five  years  of  age ; 
a  senator,  thirty  years ;  and  a  President,  thirty-five,  of 
age,  at  least.  The  United  States  Constitution  further 
provides  that  no  person  shall  be  elected  President  who 
has  not  resided  at  least  fourteen  years  in  the  United 
States.  In  state  statutes  defining  qualifications  for 
office  it  is  quite  customary  that  a  stated  period  of  resi- 
dence be  required  in  the  jurisdiction  before  election 
or  appointment,  and  this  residence  must  be  next  pre- 
ceding the  election  or  appointment.  Under  such  a 
statute  it  has  been  held  that  the  period  of  residence 
must  be  before  the  election  or  appointment,  rather 
than  before  the  beginning  of  term  of  service.31  A  non- 
resident is  eligible  to  office  unless  the  contrary  is  pro- 
vided by  statute.32 

31  Parker  v.  Smith,  3  Minn.  240 ;  32  Com.    v.    Jones,    12   Pa.    365; 

State  v.  McMillen,  23  ISTebr.  385.  State  v.  George,  23  Fla.  585. 


OFFICERS  411 

While  the  general  requirement  of  previous  residence 
may  be  highly  desirable  as  to  elective  offices,  it  may 
be  a  distinct  disadvantage  in  such  appointive  offices 
as  require  special,  or  technical  education.  By  the  gen- 
eral statutes  of  Illinois,33  it  is  required  that  no  person 
shall  be  elected  or  appointed  to  any  office  in  a  city  or 
village,  who  has  not  been  a  resident  thereof  for  the 
year  next  preceding  the  election  or  appointment;  but 
it  makes  two  exceptions  to  this  requirement,  namely, 
city  engineer  and  attorney.  Now  it  may  very  well  be 
true  that  in  even  a  fairly  large  city  or  village,  the  best 
service  obtainable  within  its  limits  in  these  particular 
lines  will  be  inferior  to  the  requirements  of  the  situa- 
tion. Moreover,  a  removal  of  this  requirement  as  to 
residence  will  stimulate  home  talent  to  apply  itself  for 
perfection,  in  the  hope  that  having  made  a  record  in 
the  smaller  place  promotion  may  be  offered  to  a  more 
lucrative  position  elsewhere.  The  same  argument  is 
doubly  applicable  relative  to  public  sanitarians.  A 
lawyer,  or  an  engineer  may  find  private  employment 
elsewhere,  if  he  prove  efficient.  There  is  practically 
no  private  demand  for  sanitarians,  and  he  who  applies 
himself  to  mastering  this  branch  of  science  is  prac- 
tically limited  to  public  employment.  If,  then,  there  is 
no  opportunity  for  the  resident  in  a  small  city  or 
village  to  take  a  position  in  another  city  of  the  com- 
mon wealth  there  is  no  incentive  for  him  to  pay  any 
attention  to  this  line  of  investigation.  The  idea  at  the 
base  of  the  exceptions  in  the  Illinois  statute  is  sound. 
It  favors  a  better  and  more  efficient  service.  As  it 
stands,  however,  it  is  of  doubtful  legality  it  being  dis- 
tinctly class  legislation.    The  exception  should  be  gen- 

33  Chap.  24,  Art.  VI,  Sec.  6. 


412  PUBLIC   HEALTH   ADMINISTRATION 

eral,  and  cover  all  such  appointive  offices  as  require 
special  technical  education  or  training.  In  fact,  it 
would  seem  desirable  that  the  exception  be  made  so 
broad  as  to  permit  appointments  to  office  requiring 
such  special  training  or  education,  without  restriction 
as  to  previous  residence,  provided  the  appointee  be  a 
citizen  of  the  United  States.  Such  exception  should 
include  both  state  and  local  offices,  but  it  should  not 
include  elective  offices.  In  most  states  such  a  broad 
exception  would  need  to  be  embodied  in  the  constitu- 
tion. In  a  more  restricted  form,  as  applying  to  resi- 
dents of  the  state,  and  to  local  offices,  a  general  statute 
would  be  sufficient. 

Conviction  of  crime,  or  a  previous  unsettled  public 
account,  are  often  statutory  disqualifications  for  office, 
as  may  also  be  the  previous  holding  of  another  office. 
In  all  cases  of  statutory  restriction,  the  exact  wording 
of  the  constitution  and  of  the  statutes  of  that  particu- 
lar state  must  govern.  There  are  in  some  cases  of 
statutory  restriction  certain  general  considerations, 
which  have  a  bearing.  After  the  civil  war  of  '61-5 
many  states  passed  statutes  giving  a  preference  to  vet- 
erans of  the  military  service.  In  New  York  state  that 
statute  was  held  not  to  apply  to  membership  on  boards 
of  health  for  villages.34 

§  309.  Holding  two  offices.  By  the  common  law  it  is 
forbidden  that  the  same  person  shall  hold  incom- 
patible offices  at  the  same  time.  By  statutory  enact- 
ment we  frequently  find  this  prohibition  widened  to 
include  the  holding  of  a  position  under  state  and 
national  government,  the  holding  of  two  positions  of 

s*  People  v.  Board  of  Trustees, 
159  N.  Y.  568. 


OFFICERS  413 

trust,  or  the  holding  of  two  lucrative  positions  at  the 
same  time.  With  regard  to  the  last  it  must  be  remem- 
bered that  every  office  carrying  any  pecuniary  com- 
pensation, no  matter  how  infinitesimal  the  compensa- 
tion may  be,  is  an  office  of  profit,  according  to  law. 

"Two  offices  are  incompatible  when  the  holder  can- 
not in  every  instance  discharge  the  duties  of  each. ' ' 35 
The  American  rule  is  well  stated  by  Dillon  as  follows : 
"Incompatibility  in  offices  exists  where  the  nature  and 
duty  of  the  two  offices  are  such  as  to  render  it 
improper,  from  considerations  of  public  policy,  for  one 
incumbent  to  retain  both." 3G  An  officer  on  the  retired 
list  of  the  United  States  Army  may  hold  an  executive 
office  under  the  national  government,  and  draw  his 
salary  therefor,  in  addition  to  his  pay;37  and  he  is 
not  under  the  statutory  prohibition  against  the  hold- 
ing by  certain  municipal  officers  of  ' '  any  other  federal, 
state,  or  municipal  office."38 

Ordinarily,  whether  the  holding  of  two  offices  is  for- 
bidden, by  either  the  common  or  statutory  law,  accept- 
ance of  the  second  vacates  the  first  office.39  But  this 
rule  does  not  apply  when  the  second  appointment  was 
illegal.  Thus,  where  the  statute  prohibited  members 
of  a  city  council  from  holding  certain  offices,  and  a 
member  of  the  council  was  appointed  to  such  office,  it 
was  held  that  the  appointment  was  illegal,  and  there- 
fore it  did  not  vacate  his  position  in  the  council.40 

35Rex    v.    Tizzard,    9    B.    &    C.  367.      The    contrary    was    held    in 

418.  State  v.  DeGrass,  53  Tex.  387. 

36  Municip.  Corp.  166,  note.  so  Foltz  v.  Kerlin,  105  Ind.  221 
(Abridged  from  the  opinion  in  Dickson  v.  People,  17  111.  191 
State  v.  Buttz,  9  S.  C.  156.  See  People  v.  Hanifan,  96  111.  420 
pp.   182-184.)  People  v.  Brooklyn,  77  N.  Y.  503 

37  Collins    v.    U.    S.    15    Ct.    of  State  v.  Draper,  45  Mo.  355. 
Claims,  22.  40  state  v.  Kearns,  47  Ohio,  566. 

as  People  v.  Duane,    121    N.   Y. 


414  PUBLIC    HEALTH   ADMINISTRATION 

Another  exception  is  to  be  fonnd  where  the  appointee 
is  obliged  under  penalty,  to  accept  the  second  office,  as 
where  an  officer  was  appointed  inspector  of  election. 
To  cause  thus  a  vacancy  in  the  first  office  would  be 
to  give  to  the  police  commission  power  to  vacate  that 
position.41  In  this  last  case  there  is  considerable 
question  as  to  the  soundness  of  the  decision.  If  the 
holding  of  the  two  offices  was  contrary  to  the  statutes 
the  board  of  police  had  no  authority  to  make  such 
appointment,  unless  the  first  office  was  to  be  relin- 
quished. But  under  penalty  for  refusing  to  accept  the 
second  office  he  could  not  thus  be  forced  to  relinquish 
the  first  by  a  board  having  no  authority  over  the  first 
office.  In  other  words,  the  appointment  was  illegal.42 
So  it  has  been  held  that  an  officer  holding  one  office 
may  not  be  a  candidate  for  an  incompatible  office,  and 
if  elected  he  is  disqualified  from  accepting  the  same. 
The  election  is  void.43  In  the  Goettman  case  there 
was  no  compulsion  upon  Goettman  as  to  accepting  the 
second  office,  for  the  fact  that  it  would  be  illegal  would 
be  sufficient  excuse  to  prevent  the  imposition  of  the 
penalty.44  When,  however,  the  holding  of  the  two 
positions  is  prohibited  by  state  law,  and  the  second 
office  is  under  the  national  government,  clearly  the 
state  law  cannot  control  the  national  appointment.  It 
does  control  the  state  position,  and  therefore  it  is  not 
necessarily  the  first  position  which  must  be  vacated,  but 

*i  Goettman   v.    Mayor,   6   Hun,  In  re  Corliss,  11  R.  I.  638 ;  People 

132.  v.   Clute,   50  Barb.   451;    Foltz  v. 

42  See    State   v.    Clarke,    3    Nev.  Kerlin,  105  Ind.  221. 

566;    Spear   v.    Robinson,    29    Me.  « Reg.   v.  Richmond,   11   W.  R. 

531.                                                   •'..:  65;   London  v.  Headon,   76  N.   C. 

43Vogel  v.  State,  107  Ind.  374;  72;  Hartford  v.  Bennett,  10  Ohio, 

Crawford  v.  Dunbar,  52  Cal.   36;  441. 


OFFICERS  415 

the  one  to  which  the  state  law  applies.45  While  it  has 
been  held,  as  stated  above,  that  the  holding  of  an 
incompatible  office  disqualifies  a  candidate  for  election, 
and  if  elected  the  election  is  void,  if  the  disqualification 
be  removed  by  resignation  or  otherwise,  before  the 
time  for  entering  upon  the  second  office,  the  election 
will  not  then  be  considered  void.46  The  fact  that  an 
officer  either  elected  or  appointed  to  an  office  is  inelig- 
ible can  only  be  determined  by  direct  test  of  title,  by 
quo  warranto.47  But  acceptance  of  a  second  office, 
incompatible  with  the  first,  ipso  facto,  vacates  the  first, 
and  it  requires  no  proceedings  in  quo  warranto  to 
accomplish  the  fact.48 

§310.  Civil  service.  The  right  to  make  appoint- 
ments is  an  executive  prerogative.  (§  126.)  This 
prerogative  should  be  freely  exercised,  without  dicta- 
tion. The  legislature  may  not  order  the  executive  to 
make  a  definite  appointment,  but  it  may,  by  reasonable 
legislation,  restrict  the  appointment  to  persons  having 
certain  qualifications.  Under  what  are  called  "  civil 
service ' '  statutes  it  is  now  common  that  restriction  of 
appointments  to  certain  positions,  both  of  employment 
and  in  office,  is  made  to  require  that  the  candidates 
pass  certain  definite  examinations,  and  that  preference 
be  given  to  those  who  stand  the  highest  on  the  list. 
The  making  of  certain  general  exceptions  to  such  rules, 
as  by  giving  a  preference  to  old  soldiers,  where  there 
is  an  evident  and  just  reason  for  the  exception,  has 
been  frequently  sustained.    Where  the  civil  service 

45  People    v.    Leonard,    73    Cal.  48  People  v.  Brooklyn,  77  N.  Y. 
230;  Foltz  v.  Kerlin,  105  Ind.  221.  503;    Whiting  v.   Carique,   2   Hill, 

46  Privett  v.  Biekf ord,  26  Kan-  93 ;  People  v.  Nostrand,  46  N.  Y. 
sas,  52.  375;    People  v.   Green,  58   N.   Y. 

47  Hall  v.  Luther,  13  Wend.  491 ;  304. 
Hamlin  v.  Dingman,  5  Lans.  61. 


416  PUBLIC   HEALTH   ADMINISTRATION 

law  is  justly  and  honestly  administered,  it  is  an  un- 
doubted advantage.  Where  it  is  dishonestly  admin- 
istered, it  may  prove  a  temporary  advantage 
to  dishonest  officials.  It  must  further  be  remembered 
that  in  its  administration  the  law  favors  the 
mediocre  incumbent  of  a  position.  The  fact  that 
he  has  the  position,  though  he  may  be  naturally 
unfitted  therefor,  tends  to  hold  him  there  so  long  as  he 
does  nothing  positively  wrong.  Sometimes  the  law 
serves  as  a  hindrance  to  efficient  administration.  In 
a  large  public  institution  under  civil  service  candi- 
dates for  the  position  came  from  quite  a  large  area. 
The  superintendent  found  that  the  candidates  for  the 
lower  positions  especially,  where  the  pay  was  small, 
were  very  likely  to  look  for  appointment  when  work 
was  not  plenty  and  general  wages  were  low.  On  the 
other  hand,  when  work  was  plenty  and  wages  were 
high  these  positions  were  vacated.  By  law  the  Super- 
intendent was  obliged  to  offer  appointment  to  those 
highest  on  the  waiting  list,  and  would  be  obliged  to 
delay  to  hear  from  one  after  another,  instead  of 
appointing  an  available  man  near  at  hand. 

§  311.  Acceptance  of  office.  The  statutes  ordinarily 
specify  that  before  entering  upon  an  office  the 
appointee  shall  take  an  official  oath,  and  sometimes 
that  he  shall  file  an  official  bond,  for  the  faithful  dis- 
charge of  his  trust.  Where  the  statute  requires  that 
an  acceptance  be  filed  within  a  specified  time,  and  a 
failure  to  file  such  acceptance  shall  be  deemed  a  refusal, 
the  filing  of  the  acceptance  is  a  substitute  for  the  oath, 
according  to  one  case.49    The  best  evidence  of  accept- 

"Bentley   v.    Phelps,   27   Barb. 
524. 


OFFICERS  417 

ance  of  office  is  the  taking  of  the  official  oath,  and 
giving  the  required  bond,  and  entering  into,  and 
actually  discharging  the  duties  of  the  office.  The  offi- 
cer administering  the  oath  of  office  is  not  empowered 
to  consider  the  validity  of  an  appointment  or 
election.50 

§  312.  Taking  office.  Ordinarily  there  is  no  trouble 
in  this  country  as  to  the  taking  of  an  office,  unless 
there  be  a  dispute  over  the  claims  of  two  or  more  can- 
didates. Without  such  a  dispute  it  is  still  possible 
that  there  may  properly  be  some  hesitancy  on  the  part 
of  the  former  incumbent,  due  to  an  honest  questioning 
relative  to  the  legality  of  the  appointment.  An  officer 
in  charge  of  an  office  is  responsible  therefor  until  he 
is  formally  and  properly  released  by  the  lawful 
authority.  If  he  turn  the  office  over  to  an  imposter,  or 
to  one  who  may  not  lawfully  have  the  responsibility 
of  the  position,  then  the  former  officer  may  be  held 
responsible,  even  for  the  misdeeds  of  his  successor. 
It  is  therefore  incumbent  upon  the  holder  of  an  office 
that  he  shall  be  fully  satisfied  as  to  the  legality  of  the 
claims  of  his  successor  to  office,  before  he  relinquishes 
his  hold.  If  there  be  a  reasonable  doubt  in  the  case 
the  only  way  open  is  for  him  to  sit  quiet  until  the  case 
is  decided  by  the  court.  It  is  not  the  duty  of  the 
holder  of  the  office  to  bring  action.  That  remains  for 
the  officer  who  is  deprived  of  his  lawful  position.  What 
are  the  proper  legal  steps  to  be  taken  to  settle  ques- 
tions relative  to  changes  in  office  will  be  considered  in 
other  sections.    (§§281,379.) 

§  313.  Taking  receipts  from  successor  in  office.  In 
turning  over  an  office  to  a  successor,  the  first  incumbent 

so  People  v.  Dean,  3  Wend.  438. 


418  PUBLIC    HEALTH   ADMINISTRATION 

should  have  an  invoice  prepared  of  all  property  turned 
over,  and  he  should  take  a  receipt  from  his  successor 
for  such  property  and  especially  for  all  moneys  thus 
transferred.  All  books  should  be  balanced.  This  in- 
cludes not  only  books  containing  financial  accounts, 
but  books  of  record,  showing  exactly  the  state  of  the 
work.  For  example:  if  there  be  records  of  reports 
of  infectious  diseases,  the  balance  should  show  the 
number  and  location,  of  each  case  still  active.  If  there 
be  accounts  of  antitoxin  out,  the  balance  should  show 
how  much  and  where  it  may  be  located.  In  some  states 
it  is  customary  to  keep  supplies  of  antitoxin  at  differ- 
ent stations,  to  be  handed  out  on  special  vouchers. 
Those  vouchers  are  transmitted  to  the  state  office,  and 
final  reports  are  to  be  sent  in  each  case  by  the  physi- 
cians using  the  same.  The  balance  should  therefore 
show  what  each  agent  still  has  for  use,  and  how  much 
has  been  handed  out  without  the  final  report  having 
been  received.  Incidentally  it  may  here  be  remarked 
that  many  practitioners  seem  to  be  negligent  of  mak- 
ing these  final  reports.  It  may  well  be  questioned 
whether  such  physicians  deserve  further  recognition, 
by  the  honoring  of  their  vouchers,  if  they  persistently 
neglect  to  do  their  share,  by  making  the  final  reports, 
by  which  the  value  of  the  service  may  be  estimated. 

§  314.  Term  of  office.  The  statute,  or  other  enact- 
ment, providing  for  an  office  usually  defines  the  duties 
of  the  office,  and  specifies  by  whom,  and  for  what  period 
of  time,  the  office  is  to  be  filled.  The  word  "term," 
when  used  relative  to  tenure  of  office,  denotes  a  fixed 
period  of  time.     (§  293.) 

§  315.  No  term— office  held  at  pleasure.  If  neither 
the  constitution  nor  the  statute,  under  which  the  office 


OFFICERS  419 

exists,  mention  a  term  for  which  the  appointment  is 
made,  the  office  is  held  at  the  pleasure  of  the  appoint- 
ing power,  and  the  holder  may  be  removed  at  any  time 
by  the  officer,  or  officers,  holding  the  appointing  power, 
and  without  giving  any  reason  therefor.51  Where  the 
constitution  provides  that  officers  of  cities  and  villages 
shall  be  elected  ''for  such  terms  and  in  such  manner 
as  may  be  prescribed  by  law,"  and  the  statute  pro- 
vided that  certain  offices  should  be  held  at  the  pleasure 
of  the  appointing  power,  it  was  held  that  the  statute 
did  not  comply  with  the  constitutional  provision,  for 
there  is  no  "  term  "  where  the  office  is  held  at  pleasure.52 
The  office  of  a  deputy  expires  with  the  office  on  which 
it  depends,  and  if  the  principal  be  reappointed  the 
deputy  cannot  serve  without  a  reappointment.53  But 
a  commission  of  one  holding  an  office  "during  the 
pleasure  of  the  Governor  for  the  time  being"  does  not 
expire  with  the  term  of  the  Governor  making  the 
appointment.54 

The  repeal  of  a  statute  or  ordinance  under  which  an 
office  exists  abolishes  the  office.55  So  it  has  been  held 
that  the  abolishment  of  the  office  making  an  appoint- 
ment vacates  the  subordinate  offices.56  On  the  other 
hand,  under  similar  conditions,  where  the  Governor 
of  California  undertook  to  make  an  appointment  under 

si  Field  v.  Girard  Col.,  54  Pa. 
233;  Story,  Constitution,  1537; 
Com.  v.  Sutherland,  3  S.  &  E.  145 ; 
Patton  v.  Vaughan,  39  Ark.  211; 
People  v.  Whitlock,  92  N.  Y.  191 ; 
Keenan  v.  Perry,  24  Tex.  253; 
People  v.  Hill,  7  Cal.  97;  State  v. 
Alt,  26  Mo.  App.  673;  Gibbs  v. 
Morgan,  39  N.  J.  Eq.  126. 

52  Speed  v.  Crawford,  3  Met. 
(Ky.)    207. 


53  Banner  v. 

McMurray,   1  Dev. 

L.  218. 

5*  Kaufman 

v.    Stone,    25    Ark« 

336. 

55  Chandler 

v.     Lawrence,     128 

Mass.  213. 

se  State     v. 

Board     of     Public 

Lands,  7  Neb. 

42. 

420  PUBLIC   HEALTH  ADMINISTRATION 

the  general  provision  as  to  appointing  to  fill  vacancies, 
and  where  by  the  abolishment  of  district  courts  there 
was  no  other  provision  for  appointment  of  police  com- 
missioners, it  was  held  that  the  old  officers  still  held, 
and  there  was  no  vacancy.57  An  office  may  be  changed 
by  general  enactment  from  "at  pleasure"  to  a  fixed 
term.  Thus,  where  an  office  was  held  at  pleasure,  a 
subsequent  statute  providing  that  the  terms  of  "all 
officers  not  otherwise  fixed"  should  be  fixed  at  four 
years,  it  was  held  that  this  fixed  a  definite  term  of  four 
years  for  this  office.58 

§  316.  Term  fixed  by  constitution.  When  the  term 
of  an  office  is  fixed  in  the  constitution,  the  legislature 
cannot  extend  it  nor  abridge  it.59  But  a  constitutional 
provision  that  the  term  of  an  officer  should  not  be 
extended  does  not  prevent  such  reasonable  changes  in 
times  of  holding  elections  as  the  legislature  may  make, 
even  though,  incidentally,  the  term  of  an  officer  be 
thereby  extended.60  Where  the  constitution  provided 
for  a  term  of  four  years,  and  the  legislature  passed 
an  act  providing  for  the  filling  of  the  office  by  an 
election  and  fixing  the  term  at  two  years,  it  was  held 
that  the  act  was  void  as  to  the  length  of  term,  but  valid 
otherwise;  and  that  a  person  elected  under  the  statute 
was  lawfully  elected  for  a  term  of  four  years.61  When 
the  term  of  an  office  is  fixed  by  law  the  Governor  can- 
not alter  the  term,  by  extension  or  abbreviation,  nor 
can  he  alter  the  duties  of  the  office,  by  changes  made 

sr  People  v.   Hammond,   66   Cal.  Throop,    Pub.    Off.    305    and    311, 

654.    See  also  Currier  v.  R.  E.  Co.,  citing  eases. 

31  N.  H.  209.  eo  state    v.    McGoveny,    92    Mo. 

ss  Hughes     v.     Buckingham,     13-  328. 

Miss.  632.  61  People     v.     Rosborough,      14 

59Mechem,      Pub.      Off.      387;  Cal.  180. 


OFFICERS  421 

in  the  wording  of  the  commission  issued.62  Whenever 
there  is  a  doubt  as  to  the  construction  of  the  statute 
or  constitution,  in  determining  the  length  of  an  officer 's 
term  the  court  will  always  give  preference  to  that  inter- 
pretation which  limits  the  term  to  the  shortest  time.63 
Though  the  commission  of  an  officer  may,  or  may  not, 
state  the  exact  term  for  which  the  appointment  is  made, 
as  to  beginning,  duration,  or  ending,  this  is  a  question, 
of  fact  to  be  proven  by  evidence,  and  that  evidence 
may  conflict  with  the  dates  as  given  by  the  commis- 
sion.64 Unless  it  be  contrary  to  special  constitutional 
provisions,  the  legislature  may  at  any  time  by  enact- 
ment alter  the  term  of  an  office.65  The  legislature  may 
lengthen  the  term,  even  after  the  election  or  appoint- 
ment of  an  officer,66  and  that  is  not  a  violation  of  the 
constitutional  provision  against  ex  post  facto  laws,  for 
that  provision  applies  only  to  criminal  legislation.67 
But  such  legislation  does  not  necessarily  extend  the 
term  of  those  holding  office  at  the  time,  unless  that 
intention  be  clearly  shown.68  Such  extension  of  term 
was,  by  the  California  supreme  court,  not  considered 
as  a  legislative  appointment.69  The  reasoning  of  the 
New  York  court  on  a  similar  question  seems  more 

G2Hench  v.  State,  72  Ind.  297.  ^  In  re  Jordan,  37  Minn.  174; 

63  Wright    v.    Adams,    45    Tex.  State  v.  Bailey,  33  N.  W.  B.  778 ; 

134.  In  re  Bulger,  45  Cal.  553;  Wilcox 

e*  State    v.    Fulkerson,    10    Mo.  v.  Eodman,  46  Mo.  322. 

681;    State    v.    Chapin,    110    Ind.  67  Johannersen    v.     U.     S.,     225 

272;  State  v.  Taylor,  15  Ohio,  137;  U.  S.  227. 

Hale  v.  Evans,  12  Kas.  562.  es  Parrel    v.    Pingree,    16    Pac. 

65  State  v.  Bailey,  33  N.  W.  K.  Eep.  843. 

778 ;  State  v.  Howe,  25  Ohio,  588 ;  eg  Christy     v.     Supervisors,     39 

In  re  Bulger,  45  Cal.  553 ;  Taf t  v.  Cal.  3. 
Adams,  128  Mass.  213;  Wilcox  v. 
Eodman,  46  Mo.   322;   In  re  Jor- 
dan, 37  Minn.   174. 


422  PUBLIC    HEALTH   ADMINISTRATION 

nearly  correct,  and  less  liable  to  abuse.  The  constitu- 
tion provided  that  town  officers  must  be  elected  or 
appointed  as  the  legislature  should  prescribe.  A 
statute,  extending  the  terms  of  the  present  incumbents 
of  certain  town  officers  was  virtually  an  attempt  of  the 
legislature  to  exercise  the  power  of  appointment ;  such 
a  statute  was  therefore  in  conflict  with  the  constitu- 
tion; that  though  the  legislature  had  authority  to 
lengthen  the  terms  of  officers,  the  extension  of  terms 
should  apply  only  to  future  holders;  and  a  person 
elected  at  the  town  meeting,  just  before  the  expiration 
of  the  terms  of  officers  in  authority  at  the  time  of  the 
passage  of  the  act,  was  entitled  to  the  office,  and  that 
the  term  of  the  former  holder  was  not  extended.70 
Under  the  constitutional  provision  authorizing  the 
legislature  to  fix  the  term  of  office,  an  act  has  been 
called  unconstitutional  which  changes  the  term  during 
the  incumbency  of  an  officer.71  So  a  statute  which 
lengthens  the  term  by  advancing  the  beginning  has 
been  considered  unconstitutional.72  But  where  the  con- 
stitution fixes  the  length  of  the  term,  but  does  not 
define  the  beginning,  the  legislature  may  determine  the 
time  of  beginning.73  Under  the  authority  of  the 
statute,  empowering  the  city  council  to  regulate  the 
manner  of  appointment  and  removal  of  officers,  an 
ordinance  fixing  the  duration  as  "during  good  be- 
havior" is  valid.74  By  an  act  amending  a  city  charter, 
and  providing  for  the  election  of  a  mayor  two  years 
before  the  expiration  of  the  term  of  the  incumbent,  but 
not  stating  when  the  newly  elected  mayor  should  take 

to  People  v.  McKinney,  52  N.  Y.  73  People  v.  Kosborough,  14  Cal. 

57.  181. 

7i  People  v.  Bull,  46  N.  Y.  57.  74  state  v.  Trenton,  50  N.  J.  L. 

72  Howard  v.  State,  10  Ind.  99.  331. 


OFFICERS  423 

his  chair,  it  was  held  that  he  might  take  immediate 
possession  of  the  office.75  Where  the  constitution  fixes 
the  maximum  term,  the  legislature  may  alter  its  dura- 
tion, provided  that  it  does  not  exceed  the  maximum.76 
The  constitution  of  Michigan  provided  for  the  elec- 
tion of  a  judge  of  probate,  who  should  hold  office  for 
four  years,  and  until  his  successor  was  elected  and 
qualified.  A  judge  was  reelected,  but  before  the  expira- 
tion of  his  old  term  he  died,  and  the  Governor,  under 
his  general  powers  to  appoint  to  fill  a  vacancy,  made 
an  appointment,  issuing  a  commission  reciting  that  it 
was  to  hold  until  the  Governor  should  revoke  the  com- 
mission. After  the  beginning  of  the  new  term,  under 
the  supposition  that  there  was  a  vacancy,  the  Governor 
made  a  new  appointment.  The  court  held  that  the  first 
appointee  was  lawfully  appointed  to  fill  the  vacancy, 
and  that  the  Governor's  power  to  appoint  to  fill 
vacancy  was  not  applicable,  there  being  no  vacancy. 
The  holder  was  entitled  to  the  office.77  Where  the  dura- 
tion of  a  term  is  fixed,  and  an  incumbent  fixes  his 
construction  of  the  statute  by  entering  the  office  upon 
a  certain  day,  he  is  thereby  estopped  from  putting 
another  interpretation  upon  it,  and  thus  trying  to 
extend  his  term.78  Where  a  city  charter  provided  that 
the  appointment  of  a  marshal  for  a  term  of  two  years 
should  be  made  by  the  council,  and  the  council  made  an 
appointment  by  resolution  fixing  the  term  for  one  year, 
and  the  bond  given  recited  that  it  was  for  the  term  of 
one  year,  it  was  held  that  the  limitation  to  one  year 
was  void,  and  that  the  appointee  held  for  two  years, 


"5  Alexander 

v.     McKenzie, 

2 

"  People  v.   Lord,   9   Mich.   227. 

S.  C.  81. 

TsPursel  v.  State,  111  Ind.  519; 

76  Christy     v. 

Supervisors, 

39 

Grieble  v.  State,  111  Ind.  369. 

Cal.   3. 

424  PUBLIC  HEALTH  ADMINISTRATION 

and  that  the  bond  was  valid  for  the  two  years.79  An 
office  filled  by  appointment,  and  where  the  beginning 
of  the  term  is  not  otherwise  fixed,  may  be  assumed  by 
the  appointee  as  soon  as  he  qualifies.80  The  term  really 
begins  from  time  of  appointment,  though  the  officer 
may  not  draw  pay  until  he  has  qualified.81  Authority 
and  office  cease  with  the  accomplishment  of  the  result 
when  an  officer  is  appointed  to  accomplish  a  specific 
result  or  an  office  is  created  to  perform  a  definite  act.82 
And  where  the  legislature  provided  for  the  appoint- 
ment of  an  officer  for  a  fixed  time,  and  at  the  expiration 
of  that  time  provided  for  the  appointment  for  a  similar 
fixed  time,  it  was  held  that  the  office  ceased  with  the 
expiration  of  the  second  period.83  Where  an  appro- 
priation act  provided  for  the  appointment  of  assistant 
agents  of  the  Treasury  Department  at  a  certain  place, 
it  was  held  that  the  office  ceased  with  the  expiration  of 
the  appropriation.84  When  there  is  a  constitutional 
provision  for  appointing  to  fill  a  vacancy,  stipulating 
that  the  person  so  appointed  shall  hold  office  "until  the 
next  regular  election, "  this  means  the  next  regular 
election  for  that  office.85  But  where  the  law  provided 
that  the  successor  should  be  elected  at  the  first  annual 
election  occurring  more  than  thirty  days  after  the 

79  Stadler   v.   Detroit,    13    Mich.  «3  State  v.  Brown,  38  Ohio,  344. 

346.  84Beaman  v.  U.  S.,   19  Ct.   of 

so  State  v.  Love,  39  N.  J.  L.  14 ;  Claims,  5.     It  will  be  noticed  that 

Also,  McGee  v.  Grill,  79  Ky.  106.  according  to  the  distinction  made 

81  Atty.    General    v.    Love,    39  in  §  265  in  some  of  these  cases  the 

N.  J.  L.  476,  approving  dictum  in  positions  may  properly  be  consid- 

Marbury    v.    Madison,    1    Cranch,  ered  employments  rather  than  of- 

137,   and    disapproving   Brodie   v.  fices. 

Campbell,  17  Cal.  11.  ss  People  v.   Wilson,   72   N.   C. 

s?  Bergen  v.  Powell,  94  N.  Y.  155. 
591;   Douvielle  v.  Supervisors,   40 
Mich.  585. 


OFFICERS  425 

happening  of  the  vacancy,  it  was  held  that  a  judge 
could  not  be  elected  for  the  unexpired  term  at  an  elec- 
tion held  within  thirty  days,  but  that  he  might  be  so 
elected  for  the  succeeding  term.86  A  statute  directing 
the  appointment  of  an  officer  of  the  city  to  hold  office 
during  a  term  of  two  years  creates  a  permanent  office, 
and  requires  a  new  appointment  at  the  expiration  of 
the  term,  and  an  officer  so  appointed  holds  for  two 
years.87  Likewise,  where  a  statute  provided  for  the 
appointment  of  seven  commissioners,  and  directed 
that  they  cast  lots  to  hold  office  for  one,  two,  three, 
four,  five,  six,  and  seven  years,  it  was  held  that  at  the 
expiration  of  those  terms  new  commissioners  ap- 
pointed to  fill  the  vacancies  continued  seven  years 
each.88 

§317.  Holding  over  term.  It  is  repugnant  to  law 
that  there  be  an  absolute  vacancy,  and  in  the  interpre- 
tation of  laws  the  courts  are  bound  in  each  case,  if  pos- 
sible, so  to  construe  that  the  vacancy  shall  not  exist. 
It  is  customary,  either  by  constitution  or  by  statute,  to 
provide  that  an  officer  shall  hold  office  until  his  suc- 
cessor shall  have  qualified.  Under  such  conditions  it 
has  been  held  that  the  incumbent  shall  remain  in  office 
until  his  successor  has  qualified,  even  though  he  thus 
hold  beyond  the  term  fixed  by  law.89  When  there  is  no 
such  provision  for  thus  holding  over  term,  it  is  the 
general  rule  that  the  incumbent  continues  to  remain 
until  his  successor  qualifies.90    When  a  successor  has 

se  State  v.  Black,  22  Minn.  336.  Baker  v.  Kirk,  33  Ind.  517;  State 

87  People  v.  Addison,  10  Cal.  1 ;  v.  Howe,  25  Ohio,  588. 

State  v.  Pearcy,  44  Mo.  159.  »o  People  v.   Oulton,  28   Cal.  44 

as  Holden  v.  People,  90  111.  434.  (full    discussion) ;    Dillon,    Munic. 

89  Walker  v.  Ferrill,  58  Ga.  512;  Corp.,   219,  citing   cases;    Mechem 

Jones  v.   Jefferson,   66  Tex.    576;  Pub.  Off.  397,  398,  399. 


426  PUBLIC    HEALTH   ADMINISTRATION 

been  elected  and  qualified,  his  death  before  the  begin- 
ning of  his  term  does  not  revive  right  of  predecessor  to 
hold  over.91  Boards  of  health  retain  their  powers  until 
their  successors  are  appointed.92 

§318.  Appointments  to  fill  vacancies.  Where  the 
constitution  provided  that  the  Governor  might  make 
an  appointment  until  the  close  of  the  next  session  of 
the  legislature,  it  was  held  that,  though  the  Governor 
made  the  appointment  for  the  full  term,  the  appoint- 
ment lasted  only  until  the  close  of  the  legislative  ses- 
sion, but  the  officer  so  appointed  would  continue  in 
office  until  his  successor  was  appointed  or  elected  and 
qualified.93  Where  the  statutes  are  not  specific  as  to 
the  term  of  an  officer  appointed  to  fill  a  vacancy,  the 
courts  have  been  somewhat  divided  as  to  whether  the 
appointment  would  be  for  a  full  term,  or  only  for  the 
unexpired  time  of  the  previous  incumbent,  the  majority 
seeming  to  favor  the  idea  that  he  holds  for  a  full  term.94 
In  California  it  was  held  that  an  appointment  during 
a  recess  of  the  senate  was  not  an  appointment  to  fill  a 
vacancy  under  the  authority  to  fill  a  vacancy  until  the 
next  session  of  the  legislature.  The  appointment  was 
therefore  for  the  full  term,  and  a  new  appointment 
could  not  be  made,  unless  the  senate  refused  to  concur 
in  the  appointment.95 

§319.  When  term  begins.  When  the  date  of  the 
beginning  of  a  term  is  stated,  as  from  a  certain  day, 
the  day  mentioned  is  excluded  from  the  computation. 

»i  State    v.    Seay,    64    Mo.    89;  93  People  v.  Tyrrell,  87  Cal.  475. 

State   v.    Hopkins,    10    Ohio,    509.  94  Throop,  Pub.  Off.  320,  citing 

But  see  Commonwealth  v.  Hanley,  cases. 

9  Pa.  509.  ss  People  v.  Mizner,  7  Cal.  519; 

92  Board    of    Health    of    Kort-  People  ■*.  Addison,  10  Cal.  1. 
right  v.  Cease,  53  Hun,  638. 


OFFICERS  427 

Thus  when  a  commission  states  that  the  appointee  shall 
hold  his  office  for  four  years  from  January  1, 1900,  the 
appointee  would  take  office  on  January  2,  1900,  and  be 
in  office  on  January  1,  1904.96 

§320.  Compensation  for  service — office  not  a  con- 
tract. "It  is  therefore  well  settled  in  the  United 
States,  that  an  office  is  not  regarded  as  held  under  a 
grant  or  contract,  within  the  constitutional  provision 
protecting  contracts ;  but,  unless  the  constitution  other- 
wise expressly  provides,  the  legislature  has  power  to 
increase  or  vary  the  duties,  or  diminish  the  salary  or 
other  compensation  appurtenant  to  the  office,  or  abolish 
any  of  its  rights  or  privileges,  before  the  end  of  the 
term,  or  to  alter  or  abridge  the  term,  or  to  abolish  the 
office  itself.  But  if  either  of  those  incidents  of  the 
office  is  fixed  by  the  constitution,  the  legislature  has  no 
power  to  alter  them,  unless  the  power  to  do  so  is 
expressly  reserved  in  the  constitution.  On  the  other 
hand,  the  acceptance  of  the  office  does  not  create  a  con- 
tract on  the  part  of  the  officer  to  serve  during  the  term 
fixed  by  law,  and  he  may  determine  the  relation  at  any 
time.  The  same  rules  apply  to  a  city,  county,  or  other 
municipal  officer,  and  the  common  council  or  other  legis- 
lative body  of  the  municipality,  where  that  body  has 
power  by  statute  to  create  and  regulate  the  office,  with- 
out restriction  upon  its  powers  or  to  particular  inci- 
dents of  the  office.  So,  where  the  board  of  supervisors 
of  a  county  has  power  to  fix  the  salary  of  a  county 
officer,  its  action  in  doing  so  does  not  create  a  contract 
between  the  officer  and  the  county,  and  the  legislature 
may  authorize  the  board  to  reduce  the  salary,  as  far 
as  it  has  not  already  been  earned." 97 

96  Best  v.  Po]k,  18  Wall.  112.  cases;    Mechem,    Pub.    Off,    Chap. 

"Throop,   Pub.    Off.    19,   citing      VI. 


428  PUBLIC   HEALTH   ADMINISTRATION 

A  county  health  officer,  appointed  by  the  board  of 
supervisors  is  only  entitled  to  the  salary  fixed  in  ad- 
vance by  the  board  of  supervisors  as  compensation 
for  official  services  rendered  by  him,  and  he  cannot 
maintain  an  action  of  assumpsit  upon  a  quantum  me- 
ruit for  such  services,  however  great.98  Later  the 
same  court  said  that  under  the  statutes  of  Mississippi 
it  is  the  duty  of  the  board  of  county  supervisors  to  fix 
the  salary  of  a  county  health  officer  in  advance  of  his 
appointment ;  but  in  the  event  that  it  fails  to  do  so  it 
may  fix  his  salary  at  a  later  date.  To  hold  otherwise 
would  result  in  depriving  such  officer  of  any  compensa- 
tion for  services  which  might  have  been  rendered  after 
his  appointment  and  before  his  salary  was  fixed,  for 
the  reason  that  he  can  receive  no  compensation  except 
at  a  salary  fixed  by  the  board.  There  is  no  conflict 
herewith  in  the  prior  decision  that  where  a  salary  of 
a  health  officer  has  been  fixed  by  order  of  the  board 
it  cannot  be  subsequently  reduced  to  such  an  amount 
as  virtually  to  abolish  the  office."  Before  a  health 
officer  may  sue  a  city  of  the  third  class  in  Kentucky 
to  recover  for  services  rendered  in  attending  a  family 
afflicted  with  the  smallpox,  he  must  show  that  his  sal- 
ary was  fixed  as  provided  by  law.100  The  Kentucky 
statute  which  provides  for  the  appointment  of  the 
county  officer,  also  provides  for  the  payment  of  such 
salary  as  may  be  fixed  by  the  fiscal  court,  and  at  no 
time  shall  he  receive  other  compensation.  Though  a 
county  contended  that  the  determination  of  the  fiscal 
court  was  final  in  that  matter,  it  was  held  that  either 

ss  Yandell    v.    Madison    County,  100  Cawley  v.  Allentown,  2  Leh. 

32  So.   918;   81  Miss.  288.  58. 

as  Adams  County  v.  Aikman,  52 
So.  513. 


OFFICERS  429 

party  had  the  right  of  appeal  should  the  amount  fixed 
be  not  a  ' '  reasonable  amount. ' ' x  But  before  the 
amount  allowed  shall  be  put  aside  the  court  must  be 
convinced  that  there  has  been  a  palpable  abuse  of 
discretion  amounting  to  injustice,  and  in  the  case  at 
bar  there  was  not  sufficient  evidence  to  show  that  the 
salary  fixed,  being  $250.00  per  annum,  was  so  small  as 
to  constitute  an  abuse  of  discretion.2 

Under  the  general  provisions  of  the  public  health 
laws  of  New  York  state,  a  local  board  of  health  is 
expressly  empowered  to  fix  the  compensation  of  its 
health  officer,  and  to  allow  him  in  addition  to  the  sum 
so  fixed  his  reasonable  expenses  in  attending  the 
annual  sanitary  conference  of  health  officers.  Under 
the  same  law  the  local  board  is  directed  to  prescribe 
the  duties  of  such  health  officer,  and  direct  him  in  their 
performance.  The  failure  of  the  board  to  prescribe 
the  duties  is  no  ground  for  withholding  his  compensa- 
tion. Neither  could  the  board  of  town  auditors  reject 
the  claims  of  the  health  officer  for  his  reasonable 
expenses  because  it  did  not  agree  with  the  board  of 
health  as  to  the  rate  of  compensation  or  the  value  of 
his  services.3  A  health  officer  is  entitled  to  his  salary 
while  he  was  not  removed,  irrespective  of  whether  he 
had  properly  discharged  his  duties.4  Extra  compen- 
sation may  be  allowed  to  a  health  officer  for  perform- 
ing other  duties  than  those  for  which  he  was  appointed 
or  employed.5  The  city  of  Elmira,  New  York,  created 
the  office  of  city  physician,  and  appointed  an  incum- 

i  Butler   County  v.   Gardner,   96  4  People    v.    Sipple,    96    N.    Y, 

S.  W.  582.  Supp.  897. 

2  Graves  v.   Padueah,   89  S.  W.  5  Allen  v.  DeKalb  Co.,  61  S.  W. 
708.  291. 

3  People    ex    rel.    Sherwood    v. 
Blood,  105  N.  Y.  S.  20. 


430  PUBLIC    HEALTH   ADMINISTRATION 

bent,  and  fixed  his  salary.  The  court  held  that  the 
city  council  had  no  authority  to  create  such  an  office, 
and  that  therefore  there  was  no  such  office,  and  there 
was  no  salary.  Neither  was  there  a  contract  for  pay, 
for  the  city  council  had  no  authority  to  bind  the  city 
by  such  a  contract.  If  he  be  regarded  simply  as  an 
employee,  he  could  be  discharged  at  any  time,  and  he 
was  entitled  to  no  compensation  further  than  for  the 
time  actually  served.6 

The  matter  of  treatment  is  distinct  from  the  quaran- 
tine of  persons  sick  with  infectious  diseases.  There- 
fore unless  the  treatment  be  a  part  of  the  regular 
duties  of  the  health  officer  as  prescribed  by  law,  before 
he  assumes  the  treatment  of  a  case  for  the  city,  or 
county,  as  the  case  may  be,  there  should  be  a  distinct 
understanding  with  the  proper  officers.  In  most  of 
these  cases  the  service  in  treatment  must  be  consid- 
ered an  employment.  The  following  cases  are  men- 
tioned here  chiefly  because  of  their  bearing  upon  the 
work  of  health  departments,  and  particularly  in  the 
service  of  health  officers  in  country  districts.  In  Mich- 
igan it  was  held  that  it  was  not  necessary  that  a  health 
officer  have  had  an  express  agreement  with  the  proper 
officers,  namely  the  board  of  health,  for  his  services  in 
the  treatment  of  patients  sick  with  infectious  diseases, 
if  the  board  knew  that  the  services  were  being  ren- 
dered, and  afterwards  allowed  his  bill.7  Also,  when  a 
physician  has  presented  his  bill  for  services  rendered 
to  indigent  persons,  his  bill  has  been  audited,  and  he 
has  accepted  without  protest  the  amount  allowed,  he 
is  estopped  to  claim  the  balance  as  service  rendered 

e  Jacobs  v.   Elmira,    132    N.    Y.  ?  Cedar       Creek      v.       Wexford 

Supp.  54.  County,  135  Mich.   124. 


OFFICERS  431 

under  statute.8  After  the  board  of  supervisors  had 
made  a  valid  contract  with  a  physician  to  treat  the 
indigent  of  the  county  he  could  not  require  the  board 
to  pay  more  than  the  sum  agreed  upon,  although  by 
reason  of  an  epidemic  he  was  called  upon  to  render 
more  service  than  was  expected  when  the  contract  was 
made.9  The  compensation  of  a  clerk  employed  by  the 
commissioner  of  health  is  not  properly  a  charge 
against  a  board  of  health.10 

§  321.  Importance  of  salary  in  health  service.  There 
is  nothing  in  a  public  office  which  implies  any  legal 
right  of  the  holder  to  demand  pay  for  service.  As  we 
have  already  seen,  many  offices  are  honorary,  and  with- 
out compensation.  This,  however,  does  not  imply  that 
the  community  has  a  moral  right  to  make  special  use 
of  a  citizen's  time  and  special  training  for  the  com- 
mon good  without  rendering  pay  therefor.  Where  one 
person  may  serve  the  state  or  the  city  as  well  as  an- 
other, there  may  sometimes  be  a  little  excuse  in  pro- 
viding either  no  pay,  or  such  a  small  amount  of  com- 
pensation that  it  is  merely  nominal — perhaps  not 
enough  to  cover  the  official  expenses.  When  on  the 
other  hand,  the  service  requires  practically  all  of  the 
officer's  working  time,  it  is  neither  just,  nor  in  har- 
mony with  sound  business  judgment,  to  expect  to  se- 
cure such  services  without  paying  therefor  practi- 
cally what  similar  services  would  bring  elsewhere. 
When,   in   addition,   the    service    requires   a   specific 

s  Brown    v.    Livingston    County,  of    Chicago,    92    111.    App.    333 ; 

85  N.  W.  745.  Sloan    v.    Peoria,    106    111.'    151: 

o  Zimmerman       v.       Cheboygan  Reynolds  v.  Mt.  Vernon,  164  N.  Y. 

County,  95   N.  W.   535.     See  also  Supp.  592. 

Bjelland   v.    Mankato,    127  N.   W.  io  Goodson  v.  Detroit  Board  of 

397;    Bourke   v.    Sanitary   District  Health,  72  N.  W.  185. 


432  PUBLIC    HEALTH   ADMINISTRATION 

knowledge,  or  technical  education,  it  is  ridiculous  to 
expect  that  the  service  will  be  faithfully  rendered,  in 
proportion  to  the  needs  of  the  community,  unless  an 
adequate  provision  be  made  for  the  pay  of  the  officer. 
In  this  regard  the  United  States  is  particularly  weak, 
and  nowhere  is  this  vital  defect  more  clearly  shown 
than  in  the  public  health  service.  Physicians  engaged 
in  the  warfare  are  actuated  by  altruistic  motives,  and 
their  aid  has  been  freely  rendered,  but  they  have  by 
no  means  given  such  service  as  the  needs  of  the  people 
demand.  This  is  particularly  true  because  of  the  very 
high  degree  of  technical  education  required,  and  the 
fact  that  there  is  practically  no  market  for  such  ser- 
vice, and  for  the  use  of  such  training,  aside  from  that 
to  be  found  in  public  office.  It  is  therefore  good  busi- 
ness sense  to  pay  officers  of  health  adequate  salaries. 
A  very  common  mistake,  it  seems,  is  to  provide  plenty 
of  subordinate  help  in  the  office,  and  not  to  pay  the 
supervisor  sufficient  salary  to  keep  his  full  time.  In 
this,  as  in  other  matters,  the  very  size  of  the  office  is 
an  impediment  to  efficiency.  Certainly  not  more  than 
two  or  three  persons  should  be  connected  with  an  office 
of  health,  unless  the  head  of  the  service  give  thereto 
his  full  time.  The  office  is  one  which  requires  brains, 
and  sound  judgment,  rather  than  mechanical  attention 
to  small  details,  though  the  details  are  important.  The 
underling  has  neither  the  judgment,  nor  the  education, 
to  give  the  best  service.    (§  129.) 

The  Earl  of  Cromer  has  had  a  long  experience  in  the 
British  foreign  office.  That  experience  has  been  as 
broad  and  varied  as  it  has  been  long.  "What  he  says 
relative  to  the  government  of  Egypt  and  the  Sudan  is 
as  nearly  authoritative  as  it  could  be ;  and  what  he  says 


OFFICERS  433 

relative  to  that  service  applies  equally  well  to  service 
in  public  health  offices.  In  his  Introduction  to  Low's 
"Egypt  in  Transition"  Cromer  says: 

"Imperialist  England  requires,  not  the  mediocre  by- 
products of  the  race,  but  the  flower  of  those  who  are 
turned  out  from  our  schools  and  colleges  to  carry  out 
successfully  an  Imperial  policy.  Their  services  cannot 
be  secured  unless  they  are  adequately  paid.  Of  all  the 
mistakes  that  can  be  committed  in  the  execution  of  an 
Imperialist  policy  the  greatest,  in  my  opinion,  is  to 
attempt  to  run  a  big  undertaking  'on  the  cheap.'  I 
am,  of  course,  very  fully  aware  of  the  financial  diffi- 
culties encountered  in  granting  a  high  scale  of  salaries. 
I  can  speak  with  some  experience  on  this  point,  in  as 
much  as  for  a  long  period,  during  the  early  days  of 
our  Egyptian  troubles,  I  had  to  deal  with  a  semi-bank- 
rupt Exchequer.  But  my  reply  to  the  financial  argu- 
ment is  that  if  money  is  not  forthcoming  to  pay  the 
price  necessary  to  secure  the  services  of  a  really  com- 
petent man,  it  is  far  preferable  not  to  make  any 
appointment  at  all."  1X 

§  322.  Inadequate  salaries  expensive.  Colquhoun, 
in  his  ' l  Greater  America, ' '  says : 12  "  The  liberality 
of  the  United  States  Government  does  not  apply  in  the 
matter  of  official  salaries  which  are  invariably,  and 
even  scandalously,  inadequate. ' '  The  tendency  of  this 
inadequateness  is  not  towards  economy.  It  frequently 
happens  that  either  a  man  is  sought  for  a  position  on 
account  of  his  wealth,  and  an  ample  fortune  which  he 
is  willing  to  spend  for  the  sake  of  personal  prestige, 
or  incompetent  men  are  placed  in  positions  because 
the  competent  cannot  afford  to  make  the  personal  sac- 

11  Low,  p.   XVIII.  32  p.  296. 


434  PUBLIC    HEALTH   ADMINISTRATION 

rifice.  With  inadequate  salaries  there  is  always  a  ten- 
dency to  attempt  to  "come  out  even"  by  engaging  in 
outside  enterprises,  often  to  the  neglect  of  official 
duties.  Sometimes  it  happens  that  the  trusted  offi- 
cials of  a  community  have  misused  their  positions  to 
amass  illegal  gains.  Because  of  the  ineffectiveness  of 
official  service,  it  often  happens,  also  that  really  public 
service  must  be  performed  by  private  associations, 
organized  to  supply  governmental  deficiencies.  This 
frequently  results  in  duplication  of  endeavors,  where 
several  organizations,  acting  independently,  each  seek 
to  do  the  same  work.  This  is  shown  in  charity  organ- 
izations, where  it  not  seldom  happens  that  families 
receive  at  the  same  time  aid  from  two  or  more  organ- 
izations, each  being  ignorant  of  the  interest  of  the 
other.  It  is  this  same  inadequacy  of  governmental 
methods  in  America  which  has  given  rise  to  the  ' '  Anti- 
tuberculosis" societies,  Milk  Supply  societies,  for  the 
distribution  of  pure  milk  among  the  deserving  poor, 
and  to  the  employment  of  agents  by  private  societies 
to  detect  and  prevent  various  unsanitary  practices. 
All  of  this  work  should  be  much  more  efficiently 
managed  by  governmental  agencies,  and  at  less 
expense.  As  it  is  the  extra  service  and  expense  falls 
upon  a  few  citizens,  though  all  reap  the  benefit. 

§323.  " Office' '  of  wider  significance  than  "officer." 
In  considering  the  economic  side  of  this  matter  of  pay, 
it  is  important  to  remember  that  in  reality  the  word 
*  *  office ' '  includes  far  more  than  ' '  officer. ' '  Legally  the 
two  words  are  used  as  if  coextensive,  and  the  officer 
includes  in  his  liabilities  all  the  employees.  What  the 
clerk,  or  the  messenger,  or  the  day  laborer  does  in  a 
given  office,  all  are  the  work  of  the  officer.    His  is  the 


OFFICERS  435 

hand  which  guides  the  machine ;  his  is  the  brain  which 
must  plan  the  work.  The  employees  in  an  office  are 
but  parts  of  a  machine.  In  mechanics,  no  man  would 
think  of  building  an  efficient  piece  of  mechanism  with 
expensive  parts  carelessly  adjusted  and  put  together; 
but  in  American  governmental  operations  this  is  com- 
mon. The  head  of  the  department,  the  officer,  should 
be  more  than  a  mere  figure,  and  that  implies  that  he 
be  properly  paid.  He  is  the  responsible  holder  of  the 
trust  of  the  people,  and  that  fact  demands  a  fuller 
recognition.  The  employees  are  under  the  ordinary 
regulation  of  commercial  law.  Their  pay  depends 
upon  the  contract  made.  That  contract  may  be  at 
any  time  altered  by  mutual  agreement,  but  it  cannot 
be  changed  except  by  such  agreement.  Or  they  are 
under  the  general  rules  of  employment.  The  amount 
of  the  pay  of  individual  employees  is  often  fixed  by 
individual  officers.  The  pay  of  the  officer  is  not  thus 
determined. 

§  324.  Officer's  compensation  determined  by  legisla- 
tion. The  pay  of  an  officer  may  be  in  the  form  of 
salary,  honorarium,  or  fees,  but  in  each  case  it  is 
determined  by  some  act  of  legislation.  The  salary  of 
the  principal  officers  of  the  state  may  be  fixed  by  the 
constitution.  Other  general  officers  find  their  com- 
pensation stated  in  the  statutes.  Sometimes  the  pay 
is  determined  in  appropriation  bills.  The  stipend  of 
municipal  officers  is  ordinarily  determined  in  the  city 
ordinances.  In  each  case  the  public  estimation  of  the 
value  of  the  individual  officer's  service  is  expressed  by 
the  act  of  the  legislative  representation  of  the  sover- 
eign will.  Unless  some  compensation  is  thus  fixed  by 
law  for  a  given  office,  none  may  be  claimed  nor  recov- 


436  PUBLIC   HEALTH   ADMINISTRATION 

ered.  Unless  there  be  such  provision  in  law,13  the 
office  is  considered  to  be  assumed  as  a  public  duty,  and 
a  personal  honor  for  trust  reposed,  and  services  are 
rendered  gratuitously.  There  is  no  implied  contract 
to  pay  what  the  services  may  be  worth.  This  rule 
applies  to  cities,14  where  neither  in  the  statutes,  nor  in 
the  ordinances  is  provision  made  for  pay.14a  But  when 
a  corporation  requires  special  services,  as  of  an  engi- 
neer, in  its  corporate,  rather  than  its  governmental 
capacity,  he  is  then  regarded  as  a  private  agent,  and 
may  recover  reasonable  value.15  So  where  a  statute 
provided  that  a  board  of  officers  should  have  a  secre- 
tary, but  made  no  provision  for  the  pay  of  such  clerk, 
it  was  decided  that  he  was  entitled  to  a  reasonable 
compensation.16  This  position  was  hardly  that  of  a 
public  officer,  but  rather  that  of  an  employment.  If 
right  to  compensation  exist  for  an  officer  it  must  be 
found  in  the  fact  that  the  law  provides  it.17  The  only 
contract  that  may  be  presumed  is  that  the  incumbent 
is  entitled  to  such  compensation  as  the  law  at  that  time 
provided.18  Unless  there  be  a  constitutional  prohibi- 
tion, the  legislature  may  at  any  time  change,  or  abolish, 
the  compensation  attached  to  an  office ;  and  in  the  same 
way,  unless  there  be  constitutional,  or  legislative  pro- 

13  State  v.  Brewer,  59  Ala.  130;  wa  Dillon  Mun.  Corp.  230. 

Wortham     v.     Grayson     Co.,     13  is  Detroit  v.  Kedfield,   19   Mich. 

Bush,  53;  Perry  v.  Cheboygan,  55  376;  Chase  v.  Lowell,  7  Gray,  33. 
Mich.    250;    White   v.    Levant,    78  is  Territory    v.    Norris,    1    Ore. 

Me.  568.  107. 

i*  White  v.  Levant,  78  Me.  568 
Sikes  v.  Hatfield,  13  Gray,  347 
Walker  v.  Cook,  129  Mass.  578 
Locke  v.  Central  City,  4  Colo.  65 
Haswell  v.  Mayor,  81  N.  Y.  255 
Barton  v.  New  Orleans,  16  La 
Ann.  317, 


i7  Steubenville  v.  Culp,  38  Ohio, 
18. 

is  Hoboken  v.  Gear,  27  N.  J.  L. 
265;  Locke  v.  Central  City,  4  Colo. 
65. 


OFFICERS  437 

liibition,  a  municipality  may  at  any  time  alter  the  pay 
of  its  officers.19  The  pay  may  at  one  time  be  in  the 
form  of  a  fixed  salary,  or  at  another  it  may  be  in  fees. 
Because  it  is  a  matter  of  law,  rather  than  of  executive 
detail,  a  superior  officer  has  no  control  over  the  pay 
of  his  subordinate.  If  the  superior  attempts  to  cut 
down  the  pay  of  the  subordinate,  by  holding  back  a 
portion  of  his  salary,  the  subordinate  may  recover  the 
full  amount,  even  though  he  may  have  accepted  the 
smaller  sum  at  the  time.20  An  act  fixing  an  officer's 
pay  does  not  necessarily  repeal  former  provisions. 
The  new  act  must  distinctly  state  its  intention  of 
change,  as  by  the  expression  "in  full  compensation," 
or  by  a  statement  that  the  sum  is  in  lieu  of  any  differ- 
ent amount.21  Therefore  an  officer  is  not  estopped 
from  collecting  the  larger  sum  by  having  accepted  a 
smaller  amount.22  Where  the  pay  of  one  officer  is 
made  the  same  as  that  of  another,  the  change  of  one 
does  not  alter  the  pay  of  the  other,  unless  the  intention 
is  clear.23  "The  term  'salary'  of  itself  imports  a  com- 
pensation for  personal  services,  and  not  the  repay- 
ment of  moneys  expended  in  the  discharge  of  the 
duties  of  the  office."24  So,  where  a  public  officer,  in 
the  discharge  of  his  official  duties,  has  been  express- 
edly,  or  by  implication,  required  to  incur  special  ex- 
pense, and  that  expense  is  not  clearly  covered  by  his 
salary  or  fees,  as  allowed  by  law,  he  is  entitled  to 

i»  Meehem,  Pub.  Off.  857,  citing  23  Johnson    v.     Lovett,    65    Ga. 

eases;  Throop,  443.  716;  Kinsey  v.  Sherman,  46  Iowa, 

zoKehn  v.  State,  93  N.  Y.  291.      463. 

21  U.  S.  v.  Fisher,  109  XL  S.  143;  24  Sniffen    v.    Mayor,    4    Sandf 
U.  S.  v.  Mitchell,  109  U.  S.  146.          193. 

22  State  v.  Steele,  57  Tex.  200. 
But  see  Brown  v.  Livingston  Co., 
85  N.  W.  745. 


438  PUBLIC    HEALTH   ADMINISTRATION 

recover  the  amount  thus  expended,  in  addition  to  his 
other  pay.25  But  where  the  constitution  prohibited 
the  increase  or  diminution  of  the  ' '  emoluments  "  of  an 
office  during  the  term  of  the  incumbent,  it  was  held 
that  the  board  of  prisoners  was  among  the  emoluments 
of  the  office  of  sheriff,  and  so  within  the  constitutional 
prohibition.26  Another  case  illustrating  how  the  pro- 
vision for  expenses  may  be  included  in  the  "emolu- 
ments" of  an  office  arose  in  the  state  of  New  York. 
The  constitution  of  1880  contains  a  provision  that  jus- 
tices of  the  supreme  court  shall  not  continue  to  serve 
after  the  31st  of  December,  following  the  attainment 
of  the  age  of  seventy  years.  It  also  provides  that  a 
justice  so  retired  from  service,  who  shall  have  served 
ten  years  or  more,  shall  continue  to  draw  "the  com- 
pensation" attached  to  the  office  for  the  remainder  of 
the  term  for  which  he  was  elected.  Whereas  formerly 
there  had  been  a  statute  providing  that  each  justice 
should  receive  an  annual  salary  of  $6,000,  and  in  addi- 
tion a  per  diem  allowance  of  five  dollars  a  day  for 
reasonable  expenses  when  absent  from  home  on  judi- 
cial business,  in  1872,  it  was  enacted  that  each  of  the 
justices  should  receive  $1,200  annually,  "in  lieu  of 
and  in  full  of  all  expenses  now  allowed  by  law."  A 
justice  having  been  thus  retired  claimed  the  $7,200 
per  annum,  but  it  was  claimed  that  he  was  entitled 
only  to  his  salary,  and  that  the  $1,200  was  intended 
only  for  expenses  while  on  duty.  He  therefore  sought 
by  mandamus  to  compel  the  payment  of  the  entire  sum. 
The  court  of  appeals  held  that  there  was  no  distinction 

25  Andrews    v.    U.    S.,    2    Story  26  Apple    v.    Crawford    County, 

C.  C.  202;  U.  S.  v.  Flanders,  112       105  Pa.  300. 
U.  S.  88;  Powell  v.  Newburgh,  19 
Johns.   284. 


OFFICERS  439 

between  the  two  items,  and  "that  the  $7,200  had  be- 
come a  debt  from  the  state,  which  nothing  could  extin- 
guish except  payment,  and  which  remained  such  until 
the  official  term  for  which  he  had  been  elected  had 
expired. "  27  On  the  other  hand,  it  has  been  held  that 
the  constitutional  provision  against  the  change  of  a 
county  officer's  compensation  does  not  prohibit  the 
county  board  from  making  such  allowances  for  clerk 
hire,  fuel,  and  other  office  expenses,  in  sums  from  time 
to  time  as  may  seem  necessary.28 

§  325.  Constitutional  prohibition  of  change  of  salary 
during  term.  Very  properly,  most  states  provide  in 
their  constitutions  a  prohibition  of  the  change  of  the 
compensation  of  an  officer  during  his  term  of  office. 
Such  a  provision  is  wise,  for  it  tends  to  restrict  the 
possibility  for  improperly  depleting  the  treasury.  But 
if  the  compensation  of  an  officer  may  not  be  changed 
during  his  term  of  service,  he  should  be  aware  of  the 
full  import  of  the  provision  before  he  enters  upon  the 
duties  and  responsibilities  which  he  is  about  to  assume. 
The  courts  are  very  strict  in  interpreting  this  prohibi- 
tion. A  county  board  attempted  to  reduce  the  salary 
of  the  district  attorney  about  an  hour  after  he  had 
qualified.  They  were  acting  under  the  statute  which 
authorized  them  to  fix  the  salary,  but  they  were  pro- 
hibited from  changing  it  during  his  term.  It  was  held 
by  the  court  that  the  reduction  was  void,  as  a  viola- 
tion of  the  prohibition.29  Where  a  reduction  has  thus 
illegally  been  made,  though  the  reduced  salary  has 

27  People  v.  Wemple,  115  N.  Y.  29  p0le     v.     Minnehaha     Co.,     5 
302;  reversing,  52  Hun,  414.  Dak.   T.  129.     See  also  Milner  v. 

28  Briscoe   v.    Clark   Co.,   95   111.  Reibenstein,   85   Cal.    593. 
309;    Kirkwood    v.    Soto,    87    Cal: 

394. 


440  PUBLIC   HEALTH  ADMINISTRATION 

been  accepted,  there  is  no  doctrine  of  waiver  or  estop- 
pel which  prevents  an  officer  from  recovering  the  bal- 
ance of  the  larger  amount.  Likewise  an  increase  in 
an  officer's  salary  made  three  days  after  he  had  entered 
upon  his  duties,  was  decided  to  be  illegal,  though  he 
would  be  entitled  to  it  upon  his  reelection.30  An  offi- 
cer may  not  receive  the  larger  salary,  increased  in 
spite  of  the  prohibition  during  his  term,  by  resigning, 
and  being  reappointed.31  The  general  expression 
"  during  his  continuance  in  office  simply  refers  to  the 
term  held  by  the  officer  during  which  an  attempt  may 
be  made  to  increase  or  decrease  his  pay,  and  it  does  not 
refer  to  future  terms.32  By  the  same  interpretation,  an 
officer  who  is  appointed  to  fill  a  vacancy  is  not  entitled 
to  an  increase  in  salary  which  may  have  been  voted 
during  that  term  of  office,  though  before  the  occurrence 
of  the  vacancy.33  It  may  therefore  become  very  impor- 
tant to  determine  the  beginning  of  the  term. 
Apparently,  when  the  appointment  is  entirely  subject 
to  the  will  of  the  appointing  power,  and  there  is  no 
fixed  term,  the  expression  "during  his  continuance  in 
office"  could  under  no  conditions  be  stretched  to 
include  a  time  before  he  has  accepted  the  official 
responsibilities.  Likewise  if  the  word  term  be  found 
in  the  prohibition  against  changing  the  pay,  the  pro- 
hibition would  not  hold  as  against  an  office  held  at 
pleasure.  But  where  the  appointment  is  made  annually 
and  the  law  does  not  state  when  the  term  shall  begin, 
there  may  be  some  considerable  doubt  as  to  whether  or 

so  Weeks  v.  Texarkana,  50  Ark.  32  Smith  v.  Waterbury,  54  Conn. 

81;  Smith  v.  Waterbury,  54  Conn.  174. 

174.  33  Larew    v.    Newman,    81    Cal. 

3i  State   v.   Hudson   County,   44  588. 
N.  J.  L.   388. 


OFFICERS  441 

not  a  given  increase  was  voted  within  the  term  of  the 
officer.  The  word  "annually"  implies  that  there  is  a 
fixed  term.  The  fact  that  the  appointing  officer  delays 
making  an  appointment  does  not  increase  the  term  of 
the  incumbent,  but  in  effect,  the  old  officer  is  serving 
in  the  place  of  his  successor.  Thus,  where  the  con- 
stitution of  the  state  provides  that  an  officer  shall  hold 
over  until  his  successor  is  chosen  and  qualified,  and  an 
officer  accepts  an  incompatible  office,  his  continuance 
in  performing  the  duties  of  the  first  office  will  not  serve 
to  oust  him  from  the  second.34  His  own  term  had 
ended,  and  that  of  his  successor  had  practically  begun, 
though  he  was  not  qualified,  nor  perhaps  selected.  The 
law  does  not  permit  a  vacancy.  One  term  begins  when 
another  leaves  off,  with  the  exception  of  such  cases  as 
those  for  which  the  statute  provides  for  the  length  of 
term,  but  does  not  state  when  the  term  shall  begin.35 
In  such  cases  the  officer  holds  for  the  full  period  of 
time  after  entering  upon  the  discharge  of  his  duties. 
But  where  an  appointment  is  to  be  made  annually,  if 
the  appointment  for  a  certain  office  be  delayed,  and  in 
the  meantime  the  salary  be  increased,  it  would  prob- 
ably be  held  that  the  increase  was  made  during  the 
term  of  the  new  appointee.  Certainly,  following  the 
interpretation  of  the  Attorney  General  in  the  case  of 
Love,36  that  the  term  begins  when  the  appointment  is 
made,  an  increase  in  salary  made  after  the  appoint- 
ment, but  before  the  acceptance  of  the  office  as  shown 
by  qualification,  the  increase  would  be  held  to  be  in  vio- 
lation of  such  provision.    It  must  be  remembered,  how- 

34  State    v.    Somers,    96    N.    C.  36  39  N.  J.  L.  476. 

467. 

3BHaight  v.  Love,  39  N.  J.  L. 
14;  State  v.  Chapin,  110  Ind.  272. 


442  PUBLIC   HEALTH   ADMINISTRATION 

ever,  that  this  prohibition,  when  found,  is  against  the 
change  of  the  compensation  for  officers  only,  and  does 
not  apply  to  the  pay  of  employees,  and  that  a  large 
proportion  of  those  engaged  in  the  health  service 
would  be  held  to  be  simply  employees,  and  not  public 
officers. 

§  326.  When  compensation  may  be  fixed  after 
appointment.  The  general  prohibition  against  changes 
in  an  officer's  compensation,  made  during  his  term  of 
service,  has  been  held  not  to  apply  when  there  was  no 
previous  compensation  provided.  Thus,  in  Pennsyl- 
vania the  statute  imposed  upon  the  court  of  quarter 
sessions  the  duty  of  fixing  the  compensation  for  the 
sheriff  in  payment  for  the  board  of  prisoners.  The 
court  had  never  permanently  fixed  that  amount, 
though  in  settling  the  account  of  the  former  sheriff  it 
had  allowed  a  certain  rate.  A  new  rate  was  fixed  by 
an  order  of  the  court  after  the  term  of  the  sheriff  had 
begun.  The  new  rate  was  lower  than  that  allowed  to 
the  predecessor.  It  was  held  that  this  was  not  a  vio- 
lation of  the  prohibition  against  raising  or  diminish- 
ing an  officer's  compensation.37  Where  the  compensa- 
tion of  municipal  officers  had  not  been  determined 
before  they  took  office,  it  was  held  that  the  ordinance 
granting  them  certain  salaries  did  not  violate  the  pro- 
hibition.38 Also,  where  a  change  in  the  compensation 
was  provided  by  the  city  council  before  the  beginning 
of  the  term,  though  the  change  could  not  be  effective 
until  later  in  the  term,  on  account  of  the  necessity  of 
making  certain  publication  of  the  ordinance,  it  was 

37  Peeling  v.  York  County,  113  Rucker  v.  Supervisors,  7  W.  Va. 
Pa.  108.  661;    Wheelock    v.    McDowell,    20 

38  State   v.    McDowell,    19    Neb.  Neb.  160. 
442:  Purcell  v.  Parks,  82  111.  346; 


OFFICERS  443 

held  not  to  be  a  violation  against  the  change  of  com- 
pensation.39 The  Kentucky  statutes  provided,40 
among  other  things,  "That  the  local  board  shall 
receive  such  compensation  for  such  services  as  the 
county  court,  in  which  the  local  board  is  established, 
shall,  in  their  discretion,  determine."  This  section 
refers  to  the  compensation  for  the  members  of  boards 
of  health.  One  John  R.  Allen  had  been  duly  appointed 
and  qualified  as  a  member  of  the  board  of  health  for 
the  county  of  Kenton,  and  he  was  chairman  of  the 
board.  After  serving  for  two  years,  he  brought  action 
against  the  fiscal  court  of  the  county,  for  the  payment 
for  his  services.  This  amount,  having  been  adjudged 
to  him,  the  fiscal  court,  which  had  refused  to  allow 
anything  for  his  services,  appealed.  The  court  of 
appeals  said,41  "The  Legislature  intended  that  the 
members  of  the  local  board  of  health  should  be  fairly 
compensated  for  the  services  they  are  required  by  law 
to  render.  The  discretion  of  the  fiscal  court  with  refer- 
ence to  the  compensation  to  which  such  board  is  en- 
titled, is  not  an  arbitrary  one,  but  it  is  a  sound  judicial 
discretion,  and  one  that  can  be  controlled.  If  the 
fiscal  court  has  an  arbitrary  discretion  in  the  matter, 
they  could  refuse  to  allow  any  compensation,  however 
valuable  and  meritorious  might  be  the  services  of  the 
members  of  the  local  board  of  health."  The  fact, 
therefore,  that  no  previous  compensation  had  been 
arranged  for  by  the  fiscal  court,  did  not  preclude  the 
recovery  for  services.  The  fact  that  the  statutes 
directed  that  such  compensation  be  provided  was  suffi- 

39  Stuhr  v.  Hoboken,  47  N.  J.  L.  *i  Stephens  v.  Allen,  44  S.  W.  E. 
147.                                                              386.     See  also  Adams  Co.  v.  Aik- 

40  Sec.  2055.  man,  52  So.  513. 


444  PUBLIC   HEALTH   ADMINISTRATION 

cient  to  remove  all  suspicion  that  the  position  had  been 
removed  from  the  status  of  honorary  to  that  of  lucra- 
tive, contrary  to  the  spirit  of  our  institutions.  So, 
where  the  state  statute  authorized  the  village  trustees 
to  make  an  annual  appropriation  to  pay  the  members 
of  the  Board  of  Health  for  their  services,  it  was  held  42 
that  although  no  appropriation  had  been  made  at  the 
time  of  his  appointment  a  member  does  not  accept 
such  appointment  without  compensation.  On  the 
other  hand,  the  act  of  1891  in  Nebraska  provided  for 
the  establishment  of  a  state  board  of  health,  and  it 
further  provided  that  the  compensation  for  the  serv- 
ices of  the  secretary  should  be  paid  from  fees  received ; 
and  there  was  no  provision  for  either  requiring  that 
such  fees  be  accounted  for,  nor  that  they  be  paid  into 
the  state  treasury.  It  was  held 43  that  although  such 
provision  for  the  compensation  of  the  secretary  was 
void,  the  statute  as  a  whole  was  not  void.  Practically 
therefore,  such  a  condition  makes  certain  duties  oblig- 
atory upon  the  officer,  though  he  may  not  be  paid 
therefor. 

§327.  Effect  of  increased  duties.  An  officer  who 
accepts  an  office  is  expected  to  perform  all  the  duties 
naturally  falling  to  that  position,  and  for  the  com- 
pensation which  is  provided.  There  being  no  contract 
in  the  case,  there  is  nothing  to  prevent  the  legislative 
authorities  from  increasing  the  duties  of  the  office. 
1 '  The  limit  of  compensation  cannot  be  transgressed  by 
the  county  by  extra  allowance  without  statutory 
authority.    The  basis  of  this  rule  is  that  the  officer 

42  People  v.   Village   of   Haver-  43  Munk  v.  Frink,  75  Neb.  172 ; 

straw,  43  N.  Y.  135,  11  App.  Div.       Walker  v.  MeMalm,  75  Neb.  179; 
108.  State  v.  Walker,  75  Neb.  177. 


OFFICERS  445 

has,  by  taking  the  office,  agreed  to  perform  all  the 
duties  of  the  office,  whether  prescribed  at  the  date  of 
his  induction,  or  subsequently  added  by  statute,  for 
the  compensation  fixed  by  law,  and  that  these  include 
all  the  services  performed  in  the  line  of  his  official 
employment."  It  has  accordingly  been  held  that  pub- 
lic corporations  cannot  lawfully  allow  extra  compensa- 
tion to  attorneys,  physicians,  and  other  county  officers, 
for  extraordinary  services  rendered  by  them  in  the 
line  of  their  professional  and  official  duty,  though  they 
were  not  foreseen  or  contemplated  at  the  time  of  induc- 
tion into  office.44  Thus  in  Iowa  a  statute  was  passed 
providing  for  the  creation  of  boards  of  health,  and  the 
mayor  was  made  a  member  of  such  board,  and  its 
chairman.  It  was  admitted  that  additional  duties 
were  thus  imposed  upon  the  mayor,  while  no  addition 
was  made  to  his  official  salary.  "This  he  knew  when 
he  accepted  the  office,  and  he  is  bound  to  perform  the 
duties  of  the  office  for  a  salary  fixed,  and  cannot  legally 
claim  additional  compensation  for  additional  services, 
even  though  they  be  subsequently  imposed  upon  him; 
and  it  matters  not  that  the  salary  was  inadequate." 45 
Therefore,  ' '  an  officer  can  recover  no  compensation  for 
services  rendered  unless  it  was  provided  for  by  law 
at  the  time  the  office  was  accepted."46 

This  prohibition  against  extra  pay  is  a  necessity. 
Duties  of  officers  are  often  indefinite  at  the  best,  and 
were  it  not  for  this  prohibition  it  would  often  occur 

"Ingersoll,  Pub.  Corp.  25,  84.  U.   S.   v.   Clough,   55   U.    S.   373 

45  State  v.  Olinger,  72  N.  W.  E.  People   v.    Vilas,    36    N".    Y.    459 
441.  Mayor  v.  Kelley,   98  N.   Y.   467 

46  Cooley,  Cons.  Lim.  276.  Other  Marshall  County  v.  Johnson,  127 
eases  upon  this  important  point  Ind.  238;  Pierie  v.  Philadelphia, 
are:  Swan  v.  Buck,  40  Miss.  268;  139  Pa.  573;  Garvie  v.  Hartford, 
People  v.  Morrell,  21  Wend.  563;  54  Conn.  440;  Buck  v.  Eureka,  109 


446  PUBLIC    HEALTH   ADMINISTRATION 

that  claims  of  special  service  would  be  made  and  per- 
mitted. Therefore  it  is,  that  when  a  statute  possibly 
allowing  extra  compensation  admits  of  two  interpreta- 
tions, it  should  be  construed  strictly  against  the 
officer.47 

The  correctness  of  diagnosis  must  be  the  base  for  all 
quarantine  regulations.  It  is  upon  that  act  that  the 
health  official  must  depend  for  his  jurisdiction  and 
defense.  If  the  disease  be  infectious  he  may  quaran- 
tine; if  not  infectious  quarantine  would  not  be  jus- 
tifiable. Whether  specifically  so  stated  by  statute  or 
not,  the  official  diagnosis  depends,  in  the  absence  of 
statement  to  the  contrary,  with  the  health  officer.  To 
make  that  diagnosis  is  part  of  his  official  duty,  and  it 
is  as  much  official  duty  when  he  finds  that  the  disease 
is  not  one  for  the  use  of  his  authority,  as  when  it 
proves  to  be  infectious.  A  health  officer  therefore  is 
not  entitled  to  compensation  for  going  in  consulta- 
tion, for  diagnostic  purposes,  to  see  a  patient  afflicted 

Cal.  504;  Debolt  v.  Cincinnati  Tp.,  Bush,  304;   People  v.  Supervisors, 

7  Ohio,  237;   Preston  v.  Bacon,  4  1     Hill,     362;     Poughkeepsie     v. 

Conn.  471;  Heslep  v.  Sacramento,  Wiltse,     36     Hun,     270;     Council 

2  Cal.  580;  Eeif  v.  Page,  55  Wis.  Bluffs  v.  Waterman,  86  Iowa,  688; 

496;    State   v.    Nashville,   15  Lea,  Coleman  v.  Elgin,  45  111.  App.  64; 

697;Gilmore    v.    Lewis,    12    Ohio,  Barteh    v.    Cutler,    6    Utah,    409; 

281;  Evans  v.  Trenton,  25  N.  J.  L.  Gordon  Co.  Com.  v.  Harris,  81  Ga. 

766;  Detroit  v.  Eedfield,  19  Mich.  719;    Stiffler  v.   Delaware,    1   Ind. 

376;    Waterman   v.   New   York,    7  App.    368;    Beard  v.   Decatur,    64 

Daly,  439;   Albright  v.  County  of  Tex.  7;   Stockwell  v.  Genesee  Co.. 

Bedford,    106   Pa.   582.      (In   this  56  Mich.  221;  In  re  Parsons,   54 

case  the  matter  involved  expenses  N.   Y.   451;    Glavie  v.  TJ.  S.,   182 

incurred     in     performing     duties,  U.   S.  595;   Pilie  v.  New  Orleans, 

which  the  county,  by  long  usage,  19  La.  Ann.  274;  Hatch  v.  Mann, 

had    been    accustomed    to    bear.)  15  Wend.  44;   Hobbs  v.  Yonkers, 

White  v.  Polk  Co.,  17  Iowa,  413;  102  N.  Y.  13;  Memphis  v.  Brown, 

Ludlow  v.   Eichie,    25   Ky.    1581;  20  Wall.  289. 

Sidway  v.  Commissioners,  120  111.  ^  LT.  S.  v.  Clough,  55  U.  S.  373. 

496;     Covington    v.    Mayberry,    9 


OFFICERS  447 

with  a  disease  dangerous  to  the  public  health.48 
Neither  is  a  health  officer  entitled  to  extra  compensa- 
tion in  Michigan  for  disinfecting  and  fumigating 
houses  in  which  cases  of  infectious  disease  have 
occurred,  as  this  is  one  of  the  duties  prescribed  for 
health  officers  by  the  statutes.49 

§328.  Payment  of  substitute  for  extra  services  not 
permissible.  The  Court  of  Appeals  of  Kentucky  had 
before  it  a  case  which  covers  several  questions  relative 
to  extra  services  for  a  health  office.  The  facts  were 
substantially  as  follows:  The  county  board  of  health 
for  Hickman  County  was  legally  organized,  and  in  ac- 
cordance with  the  law  it  appointed  one  Dr.  Scar- 
borough to  act  as  secretary  and  health  officer,  and  fixed 
his  salary  at  $50.00  per  annum.  The  said  Dr.  Scar- 
borough refused  to  perform  the  duties  of  the  office  for 
such  a  sum,  and  the  board  therefore  engaged  one  Dr. 
McMorris  to  perform  the  needed  services.  It  was  ad- 
mitted that  acting  under  the  orders  of  the  board  the 
said  McMorris  had  established  a  number  of  quaran- 
tines for  smallpox  and  for  scarlet  fever,  and  had  fumi- 
gated premises  therefor,  because  of  epidemics.  It  was 
admitted  that  the  bill  rendered  was  reasonable  and 
just.  The  circuit  court  concluded  that  the  circum- 
stances were  sufficient  to  justify  the  board  of  health 
in  hiring  a  substitute  to  do  the  work  which  the  health 
officer  had  refused  to  do.  It  therefore  allowed  the  bill 
of  McMorris.  The  court  of  appeals  reversed  this  deci- 
sion. 

The  court  of  appeals  agrees  with  the  circuit  court 
that  the  evidence  was  sufficient  to  show  that  the  par- 
ticular services  for  which  an  allowance  was  claimed 

48  Brown   v.   Livingston   Co.,   85,  49  Tabor    v.    Berrien    Co.,    120 

N.  W.  745.  N.  W.  588. 


448  PUBLIC    HEALTH   ADMINISTRATION 

were  authorized  by  the  county  board.  It  also  con- 
cludes that  services  rendered  in  fumigating  premises 
of  those  afflicted  with  contagious  diseases  and  estab- 
lishing quarantines,  even  though  the  persons  afflicted 
with  the  disease  were  solvent,  were  services  for  which 
the  county  was  liable,  as  such  measures  are  not  taken 
for  the  individual  benefit  of  the  particular  patient,  but 
to  prevent  the  spread  of  the  disease,  and  are  therefore 
for  the  benefit  of  the  public  generally.  May  the  county 
board  of  health,  while  there  is  a  regularly  appointed 
health  officer  in  office,  who  refuses  to  perform  the 
duties  of  the  office,  impose  the  performance  of  his 
duties  upon  another  physician,  and  make  the  county 
liable  for  the  payment  of  the  latter 's  services'?  Mani- 
festly not.  When  Dr.  Scarborough  resigned  as  health 
officer,  on  the  ground  that  he  was  unwilling  to  perform 
the  duties  of  that  office  for  the  compensation  fixed  by 
the  fiscal  court,  the  county  board  of  health  should 
have  accepted  his  resignation.  It  had  no  right  to  let 
him  continue  in  office  and  delegate  his  duties  to  an- 
other; nor  did  Dr.  Scarborough  have  the  right  to  hold 
the  office,  and  at  the  same  time  refuse  to  perform  the 
duties  thereof.  Even  if  he  had  not  resigned,  it  was  the 
duty  of  the  county  board  of  health  to  remove  him  and 
appoint  another  in  his  place,  who  would  perform  the 
duties  of  the  office.  The  statute  plainly  provides  that 
the  fiscal  court  shall  fix  the  salary  of  the  health  officer 
at  the  time  of  or  immediately  after  his  election,  and 
that  in  no  state  of  case  shall  such  health  officer  claim 
or  receive  from  the  county  any  compensation  for  his 
services  other  than  the  salary  fixed  by  the  fiscal  court. 
This  provision  of  the  statute  cannot  be  evaded  by 
letting  the  health  officer  remain  in  office  without  per- 


OFFICERS  449 

forming  the  duties  of  the  office,  and  then  delegating 
to  another  the  performance  of  those  duties,  and  allow- 
ing him  compensation  therefor. 

"But  it  was  claimed  that  under  this  view  of  the  law, 
the  fiscal  court  may  fix  the  salary  of  the  health  officer 
so  low  that  no  one  will  perform  the  duties  of  the 
office,  and  thus  defeat  the  very  purposes  for  which 
the  county  boards  of  health  are  established.  This 
court  has  held,  however,  that  the  salary  fixed  for  the 
health  officer  must  be  reasonable,  and  that  from  an 
order  of  the  fiscal  court  fixing  the  salary  an  appeal 
lies  to  the  circuit  court,  and  thence  to  this  court.  Under 
these  circumstances  the  court  thinks  that  there  will 
be  no  difficulty  in  securing  the  services  of  a  competent 
health  officer,  even  though  the  fiscal  court  should  make 
the  salary  unreasonably  low,  for,  on  making  this  fact 
appear,  the  necessary  relief  will  be  afforded  either  in 
the  circuit  court  or  this  court.  If  it  be  argued  that, 
owing  to  the  uncertainty  as  to  the  amount  of  salary  the 
health  officer  is  to  receive,  no  one  will  undertake  the 
duties  of  the  office,  it  is  sufficient  answer  to  say  that 
the  members  of  the  fiscal  court  are  charged  with  the 
duty  of  fixing  a  reasonable  compensation  for  the  health 
officer,  and  no  doubt  the  fact  that  for  a  failure  in  this 
respect,  resulting  in  an  epidemic  in  the  community, 
they  will  be  answerable  to  their  constituents,  who  will 
not  continue  in  office  men  who  are  so  unmindful  of  the 
health  and  welfare  of  the  people,  will  be  a  sufficient 
reason  why  they  should  act  justly  and  properly,  aside 
from  the  fact  that  their  action  will  be  reviewed  by  a 
higher  court.  As  $213  of  the  amount  of  Dr.  McMorris' 
claim  was  for  services  rendered  while  Dr.  Scarborough 
was   the   health   officer  it   follows   that   he   was   not 


450  PUBLIC   HEALTH   ADMINISTRATION 

entitled  to  recover  that  sum.  Nor  was  he  entitled  to 
recover  the  remainder  of  $69  for  services  performed 
after  his  appointment  as  health  officer,  as  his  claim  for 
the  latter  sum  will  be  included  in  whatever  salary  the 
fiscal  court  may  have  fixed  for  his  services.  If  no 
salary  has  heretofore  been  fixed,  the  fiscal  court  will 
fix  the  salary  at  a  reasonable  sum. " 50  It  must  be 
remembered  that,  if  made,  an  appeal  from  the  action 
of  the  fiscal  court  in  fixing  the  salary  must  be  made 
immediately.  Otherwise  a  change  would  be  held  to 
violate  the  principle  that  the  salary  may  not  be 
changed  during  the  incumbency  of  the  holder. 

There  are  important  deductions  to  be  made  from 
this  decision  which  is  evidently  sound.  First,  it  is  the 
duty  of  those  who  fix  the  salary  of  health  officials  to 
determine  upon  a  reasonable  sum,  and  if  through  their 
failure  to  do  so  harm  results  to  the  community  they 
are  responsible  to  their  constituents  for  the  harm  pro- 
duced. Secondly,  this  salary,  or  other  compensation 
must  be  such  as  to  produce  an  efficient  sendee.  Thirdly, 
having  fixed  the  salary  it  is  incumbent  upon  the  health 
officer  so  appointed  to  actually  do  the  work  for  the 
sum  thus  provided.  It  is  very  questionable  whether, 
having  fixed  the  salary  at  such  a  sum  that  the  chosen 
official  cannot  properly  do  the  work,  because  it  is 
necessary  for  him  to  engage  in  other  business,  as  in 
the  ordinary  practice  of  his  profession,  the  authorities 
have  either  the  moral  or  the  legal  right  to  evade  the 
spirit  of  the  law  by  providing  that  some  part  of  the 
officer's  work  shall  be  done  by  other  employees;  and 
it  is  questionable  whether  a  municipality  has  the 
authority,  under  such  circumstances,  to  create  addi- 

50  Hickman  County  v.  McMorris, 
147  S.  W.  B.  768. 


OFFICERS  451 

tional  officers  to  do  a  portion  of  the  work  regularly 
belonging  to  a  health  officer.  By  this  it  must  not  be 
concluded  that  there  is  reasonable  objection  to  appoint- 
ing additional  help  in  an  office  which  uses  the  full  time 
of  the  health  officer,  or  commissioner,  where  his  official 
business  will  not  permit  him  to  do  the  whole  work;  but 
it  does  apply  to  such  offices  as  are  presided  over  by  a 
commissioner,  or  health  officer,  who,  owing  to  the 
smallness  of  his  official  compensation,  devotes  much  of 
his  time  to  private  practice,  even  though  he  do  devote 
more  time  to  his  office  than  a  reasonable  estimation  of 
the  services  show  that  he  is  really  paid  for. 

§  329.  Extra  official  duties.  Incidentally,  and  not  as 
a  portion  of  his  official  duties,  an  officer  may  be  called 
upon  to  perform  other  services.  Thus,  though  it  may 
be  no  part  of  the  health  official's  duties  to  treat  cases 
of  illness,  during  an  epidemic,  as  of  small-pox,  it  may 
be  advisable  for  him  to  also  take  the  treatment  of 
cases,  as  a  precautionary  measure,  especially  when  he 
finds  that  it  be  necessary  to  remove  the  patients  from 
their  homes.  Under  ordinary  circumstances  such  a 
course  is  not  advisable,  for  it  tends  to  produce  friction 
between  the  private  practitioners  and  the  office.  Such 
service,  if  rendered  by  the  official,  should  be  the  result 
of  a  special  arrangement,  in  the  nature  of  a  contract. 
Sometimes  the  law  may  provide  for  such  extra  service, 
by  fixing  the  amount  of  fees,  but  not  stating  by  whom 
the  fees  shall  be  paid.  In  such  cases  it  is  the  general 
rule  that  the  fees  shall  be  paid  by  the  person  at  whose 
request  the  service  is  rendered,  and  the  officer  may 
collect  them  from  such  person.51    But  the  officer  may 

si  Baldwin  v.  Kansas,  81  Ala. 
272;  People  v.  Harlow,  29  Ind.  43; 
Ripley  v.  Gifford,  11  Iowa,  367. 


452  PUBLIC    HEALTH   ADMINISTRATION 

not  collect  more  than  is  specifically  thus  provided, 
even  on  the  ground  of  extra  service  and  though  prom- 
ise be  made  of  extra  compensation.52  A  contract  or 
agreement  to  pay  more  than  the  legal  fees  is  void  as 
being  opposed  to  public  policy.53  In  some  instances 
the  claim  for  extra  compensation  for  officers  has  been 
sustained,  in  the  absence  of  express  provision,  where 
the  law  has  required  an  officer  to  perform  a  duty, 
attended  with  extra  trouble  and  expense,  and  clearly 
outside  of  his  regular  official  duties.54 

§  330.  Compensation  for  two  offices.  An  officer  who 
holds  two  distinct  offices,  not  incompatible  with  each 
other,  is  entitled  to  recover  the  stipulated  compensa- 
tion for  each  office.55  He  can  not,  however,  recover  a 
per  diem  compensation  for  the  same  day  from  two  or 
more  independent  sources.56  Where  the  offices  are  in- 
compatible, or  the  holding  of  the  two  is  prohibited  by 
law,  it  is  clear  that  with  the  office  forfeited  the  officer 
also  forfeits  his  pay  therefor.57 

52  Wileoxon  v.  Andrews,  66  Mich.  wood  Co.,  23  Kas.  281;  Butler  v. 
553;  Peek  v.  Bank,  51  Mich.  353;  Neosho  Co.,  15  Kas.  178;  Leaven- 
Burk  v.  Webb,  32  Mich.  174;  worth  V.  Brewer,  9  Kas.  307; 
Vandereook  v.  Williams,  106  Ind.  White  v.  Polk  Co.,  17  Iowa,  413, 
345;  Fort  Wayne  v.  Lehr,  88  Ind.  479;Goud  v.  Portland,  96  Me.  125; 
62;  Willemin  v.  Bateson,  63  Mich.  Finley  v.  Territory,  12  Oka.  621; 
309.  Clooman    v.     Kingston,     37     Misc. 

53  Hatch  v.  Mann,  15  Wend.  44;  Per.  322;  Niles  v.  Muzzy,  33  Mich. 
Vandereook  v.  Williams,  106  Ind.  61;  McBride  v.  Grand  Eapids,  47 
345;  Fort  Wayne  v.  Lehr,  88  Ind.  Mich.  236. 

62.  55U.  S.  v.  Saunders,  120  U.  S. 

s*  People     v.      Supervisors,      12  126;   In  re  Conrad,  15  Fed.  Rep. 

Wend.  237;  Bright  v.  Supervisors,  641. 

18  Johns.  242;   Mallory  v.  Super-  56  Montgomery   County  v.  Brom- 

visors,   2    Cowen,    531;    Detroit   v.  ley,  108  Ind.  158. 

Kedfield,    19   Mich.   376;    MeBride  57  state  v.  Comptroller  General, 

v.  Detroit,  47  Mich.  236;  s.  c.  49  9  S.  C.  259. 
Mich.    239;     Huffman    v.    Green- 


OFFICERS  453 

§331.  Compensation  depends  upon  actual  service. 

In  order  to  recover  his  salary  an  officer  must  show  that 
he  has  been  duly  elected  or  appointed,  and  that  he  has 
properly  qualified,  that  is,  that  he  is  in  truth  an  officer 
de  jure.  An  officer  holding  over  lawfully  is  entitled 
to  the  regular  salary  until  his  successor  has  qualified.58 
An  officer  is  entitled  to  his  salary  during  the  time  he 
is  actually  serving,59  even  though  he  may  not  have 
filed  his  official  bond  before  beginning  service.60  An 
officer  nominated  for  promotion,  on  condition  of  his 
passing  an  examination,  is  not  entitled  to  the  new 
salary  until  he  has  actually  passed  the  examination.61 
An  officer  removed  from  office  is  entitled  to  recover 
only  for  that  portion  of  his  salary  which  he  has  earned; 
and  if  the  salary  be  paid  quarterly,  and  he  be  removed 
during  the  quarter  he  is  not  entitled  to  the  entire  sal- 
ary for  the  quarter.62  Neither  is  an  officer  entitled  to 
his  pay  during  the  time  that  he  may  stand  suspended 
from  office.63  But  if  he  had  been  unlawfully  removed 
he  is  entitled  to  recover  the  salary  which  he  had  been 
thus  prevented  from  earning,64  even  though  the  salary 
had  been  paid  to  one  thus  unlawfully  appointed  to 
the  supposed  vacancy  created  by  his  removal.65  So 
long  as  an  officer  is  permitted  to  retain  his  office,  sick- 

ss  Hubbard  v.  Crawford,  19  Kas.  S.),  68;  White  v.  Mayor,  4  E.  D. 

570.  Smith,  563;   Chisholm  v.  Coleman, 

59Farrell     v.      Bridgeport,      45  43  Ala.  204. 

Conn.  191 ;  Throop,  Pub.  Off.  473 ;  63  Steubenville  v.  Culp,  38  Ohio, 

Dillon,    Munie.    Corp.    235,    citing  18;  Smith  v.  Mayor,  37  N  Y.  518; 

Queen    v.    Atlanta,    59    Ga.    318 ;  Attorney  General  v.  Davis,  44  Mo. 

Auditors  v.  Benoit,  20  Mich.  170.  131;  Westberg  v.  Kansas  City,  64 

so  U.  S.  v.  Flanders,  112  U.  S.  Mo.  493. 

88.  64  Fitzsimmons  v.  Brooklyn,  102 

ei  Crygier   v.   U.   S.,   25   Ct.   of  N.  Y.  536. 

CI.  268.  en  Andrews  v.  Portland,  79  Me. 

62  U.  S.   v.   Smith,   1   Bond    (U.  484. 


454  PUBLIC  HEALTH  ADMINISTRATION 

ness  will  not  prevent  him  from  recovering  his  salary.06 
Also,  where  an  officer  de  jure  has  been  prevented  from 
entering  npon  the  discharge  of  his  duties  by  the 
wrongful  refusal  of  other  officers  to  recognize  his 
authority,  he  is  entitled  to  recover  the  full  amount  of 
the  perquisites  of  the  office,67  and  the  plaintiff  need 
not  deduct  the  amount  which  he  earned  while  illegally 
kept  out  of  his  office.68  Where  the  salary  has  been 
paid  to  an  officer  de  facto,  the  officer  de  jure  cannot 
recover  from  the  government,69  but  he  may  recover 
from  the  officer  de  facto.  Opinions  are  somewhat  con- 
flicting as  to  the  amount  which  may  be  recovered  thus 
from  the  de  facto  officers.  In  some  cases  the  officer 
de  facto  has  been  permitted  to  retain  certain  fees,  on 
the  ground  that  the  officer  de  jure  had  not  made  for- 
mal demand  for  the  surrender  of  the  office.  In  others, 
the  officer  de  facto  was  permitted  to  retain  expense  of 
the  office.70  Where  the  salary  has  been  voluntarily 
paid  to  an  officer  de  facto  the  public  can  not  recover.71 
An  officer  de  facto  cannot  recover  for  his  services.72 
A  physician  having  been  employed  to  treat  the  poor 
of  the  county  later  engaged  another  to  do  the  work  for 
him.  Held,  that  though  the  first  physician  was 
entitled  to  recover  for  services  up  to  the  time  of 
employment  of  the  second  physician,  and  for  the  drugs 

esO'Leary  v.  Board  of  Educa-  69  Mechem,  Pub.   Off.  332,  with 

tion,  93  N.  Y.  1.  -ist  of  cases. 

67  Matthews    v.    Supervisors,    53  7 o  Mechem,  Pub.  Off.  333,  334; 

Miss.  715;  MeCue  v.  Wapello  Co.,  Throop,  Pub.  Off.  522,  523. 

56  Iowa,  698;  Darby  v.  Wilming-  7i  Diggs  v.  State,  49  Ala.  311; 

ton,  76  N.  C.  133.  State  v.  Long,  76  N.  C.  254;  N/eale 

«8  People    v.    Miller,    24    Mich.  v.  Overseers,  5  Watts,  538;   State 

458;  Fitzsimmons  v.  Brooklyn,  102  v.  Goss,  69  Me.  22. 

N.  Y.  536 ;   Andrews  v.  Portland,  72  Mechem,  Pub.  Off.  331,  citing 

79  Me.  484.  eases. 


OFFICERS  455 

actually  used  in  the  matter  by  the  second  physician, 
he  could  not  recover  for  the  services  of  the  second 
physician.73 

§332.  Second  term  presupposes  old  rate.  Accord- 
ing to  the  rule  of  private  agencies,  where  a  person  is 
engaged  at  a  fixed  compensation  per  annum,  "the  con- 
tinuance of  the  service  will  presuppose  the  same  rate 
of  pay,  in  the  absence  of  other  arrangements.74  So 
with  public  officers,  at  the  expiration  of  the  term  for 
which  they  were  appointed,  in  the  absence  of  a  new 
agreement,  if  retained  in  position  the  officer  can 
recover  only  according  to  the  former  arrangement, 
and  he  can  not  claim  greater  pay  on  a  quantum 
meruit.75 

§333.  Abolition  of  office  stops  compensation.  If 
there  be  no  office  there  can  be  no  service;  and  there 
being  no  service,  there  can  be  no  pay  therefor.  There- 
fore, when  an  office  is  abolished  the  incumbent  is 
entitled  only  to  that  portion  of  the  salary  earned,71*' 
even  though  money  was  appropriated  to  pay  the  salary 
for  a  year.77  But  where  the  salary  is  payable  at  so 
much  per  annum,  though  the  services  may  be  irregular, 
it  was  held  in  one  case  that  upon  the  abolition  of  the 
office  the  incumbent  was  entitled  to  the  full  year's 
salary.78 

§  334.  Dissatisfied  officer  may  resign.  There  is  in 
the  United  States  no  tendency  towards  compelling  a 
person  to  take  and  keep  a  public  office  against  his  will, 
unless  the  jury  system  be  an  exception,  though  in 

73  Chapman  v.   Muskegon  Coun-  76  Jones  v.  Shaw,  15  Tex.  577 ; 

ty,  134  N.  W.  1025.  State  v.  Gaines,  2  Lea,  316. 

7*  Mechem  on  Agency,  212,  608.  77  Hall  v.  State,  39  Wis.  79. 

75  Capps  v.  Adams  Co.,  43  N.  W.  7S  ex   parte   Lawrence,    1    Ohio, 

R.  114.  431. 


456  PUBLIC   HEALTH  ADMINISTRATION 

times  of  special  stress  an  officer  may  be  called  upon 
for  services  far  beyond  what  his  compensation  calls 
for,  and  far  more  than  he  may  feel  able  to  give.  He 
may  not  claim  extra  compensation,  but  he  may 
resign.79  There  is  a  well  recognized  hesitancy  about 
resigning  "under  fire,"  and  a  health  official,  especially, 
who  does  so  exposes  himself  to  very  unfavorable 
criticism,  but  such  a  course  is  sometimes  the  only  one 
to  bring  the  community  to  realize  the  injustice  which 
it  is  working.  The  officer  who,  either  because  of  inade- 
quate salary,  or  for  other  reason,  cannot  give  the  serv- 
ice which  the  office  demands,  should  resign.  In  one 
instance  a  health  official's  efforts  were  blocked  by  the 
inactivity,  and  perhaps  hostility  of  the  legal  depart- 
ment. There  had  been  much  extra  work  due  to  the 
presence  of  an  epidemic,  which  was  still  raging.  The 
health  official's  resignation,  coupled  with  a  plain  state- 
ment of  the  facts,  resulted  in  an  investigation.  The 
health  department  was  freed  from  the  restraints  of 
the  legal  department,  and  with  certain  added  work 
the  pay  of  the  officer  was  increased,  in  the  place  of 
accepting  the  resignation,  which  had  been  given  in 
good  faith. 

§  335.  Original  bond  covers  extra  duties.  When  the 
law  increases  the  duties  of  an  officer  during  his  incum- 
bency, his  original  bond  is  held  to  cover  the  new 
duties,  though  the  same  be  not  specifically  stated  in 
the  bond.80 

§  336.  Officer  cannot  pay  self.  Because  the  making 
of  contracts  by  boards  with  one  of  the  board  members, 

79  Evans    v.    Trenton,    4    Zabr.  so  Bd.  of  Auburn  v.  Quick,  99  N. 

766;  Decatur  v.  Vermilion,  77  111.  T.  138;  People  v.  Vilas,  36  N.  Y. 
315.  451. 


OFFICERS  457 

or  by  officers  with  fellow  officers,  opens  the  door  for 
fraud  and  jobbery,  such  arrangements  are  contrary 
to  public  policy  and  should  be  prohibited.  It  is  true 
that  in  Cedar  Creek  v.  Wexford  County,81  for  example, 
the  court  recognized  such  an  agreement,  even  without 
a  specific  contract.  It  seems  to  us  that  the  court  rather 
stretched  the  point.  Be  that  as  it  may,  such  contracts 
are  frequently  prohibited,  either  by  the  state  constitu- 
tion, or  by  statute.  Upon  this  point  the  Minnesota 
supreme  court  has  said : 82  * l  Contracts  with  public 
officers  are  forbidden  by  Section  5032  of  the  Revised 
Laws  of  Minnesota,  and  are  void.  The  rule  that  such 
contracts  are  void  and  cannot  be  enforced  rests  on  a 
wise  public  policy,  and  it  must  be  enforced  without 
reference  to  the  merits  of  the  contract,  the  intention 
of  the  parties,  or  the  hardship  of  exceptional  cases. 
Nor  does  the  court  agree  with  the  contention  that  the 
statute  and  the  rule  do  not  apply  to  a  board  of  health, 
and  that  it  may  employ  one  of  its  members  as  its  health 
officer  for  the  purpose  of  controlling  and  suppressing 
an  epidemic  of  contagious  or  infectious  disease.  As 
to  the  suggestion  that  the  board  was  confronted  by 
an  emergency  which  justified  it  in  making  the  contract 
in  question,  the  court  answers  that  an  emergency  con- 
fronts a  board  of  health  in  every  case  of  an  epidemic 
of  contagious  or  infectious  disease ;  but  this  affords  no 
reason  why  such  cases  should  be  exempted  from  the 
statute  by  the  court,  for  the  board  may  employ,  when 
the  emergency  justifies  it,  a  physician  other  than  one 
of  their  own  members  to  render  the  extra  medical 
service. ' ' 

si  135  Mich.  124. 
saBjelland   v.   Mankato,    127  N. 
W.  397. 


458  PUBLIC   HEALTH   ADMINISTRATION 

The  public  have  a  right  to  know  what  is  transpir- 
ing in  its  name.  Everything  which  is  proper 
for  the  citizens  to  know  relative  to  public  affairs 
should  be  easily  ascertained.  There  are  matters  of 
government,  such  as  the  diplomatic  service,  which  may 
be  efficient  for  the  common  good,  very  nearly  in  pro- 
portion to  the  degree  with  which,  during  the  transac- 
tion, they  are  kept  private.  As  an  example  of  how 
the  business  of  a  department  should  not  be  done,  we 
may  instance  the  Illinois  State  Board  of  Health.  By 
a  series  of  enactments  this  somewhat  anomalous  body 
was  entrusted  with  two  general  classes  of  duties.  As 
a  board  of  health,  proper,  it  received  general  appro- 
priations from  the  state.  As  a  board  entrusted  with 
the  regulation  of  the  practice  of  medicine  and  of  under- 
takers, it  received  fees  for  licenses  and  fines  collected 
for  violations  of  the  practice  acts.  As  a  board  of 
health,  because  all  appropriations  were  easily  traced 
it  was  an  easy  matter  to  audit  its  accounts,  and  this 
was  for  years  done  by  the  state  auditor.  As  a  license 
board  it  audited  its  own  accounts,  paid  money  on  its 
own  vouchers,  and  rendered  such  accounts  to  the  Gov- 
ernor as  it  thought  proper.  These  accounts  were  filed 
in  the  Governor's  office,  and  only  a  summary  was  pub- 
lished. Because  the  itemized  accounts  were  not 
published,  and  easily  accessible  for  any  interested  citi- 
zen, it  would  have  been  very  easy  so  to  "juggle"  the 
statements  as  to  fail  to  account  for  very  much  of  its 
receipts.  It  employed  a  private  attorney,  contrary  to 
the  law  of  the  state,  but  in  accord  with  a  long  estab- 
lished practice.  Though  not  clearly  within  the  law,  it 
was  understood  that  the  board  provided  for  the  pay 
of  its  members  for  making  the  license  examinations 


OFFICERS  459 

from  amounts  received  in  this  branch  of  its  work. 
Without  intimating  that  there  was  any  intentional  dis- 
honesty in  this  proceeding,  it  is  easy  to  see  that  such 
a  practice  is  contrary  to  public  policy. 

A  public  officer  is  entitled  to  pay  for  his  services 
from  the  public  treasury,  unless  it  be  distinctly  stated 
in  the  law  that  he  may  retain  fees  received  for  the 
transaction  of  the  business,  and  all  fees,  or  fines, 
collected  should  be  paid  into  the  public  treasury.  This 
subject  was  very  clearly  treated  in  a  case  arising  in 
New  Orleans.  The  wharfinger  of  the  city  was  ex  offi- 
cio collector  of  levee  dues,  which  he  retained  for  his 
services.  The  court  said:83  "His  duties  were  to  col- 
lect the  moneys  due  to  the  city  in  the  department  in 
which  he  held  office;  his  obligation  was  to  deposit  the 
money  so  collected  in  the  city  treasury.  His  salary 
was  to  be  paid  as  the  salaries  of  other  officers  of  the 
city  were  paid,  to  wit:  out  of  the  common  treasury. 
There  is  no  place  for  the  plea  of  compensation  in  a 
case  of  this  kind.  Compensation  takes  place  of  right 
between  individuals  when  the  debts  due  by  the  respec- 
tive parties  are  equally  due  and  demandable,  and 
where  the  character  of  the  debts  is  the  same.  It  can- 
not be  opposed  by  a  fiduciary  acting  in  the  line  of  his 
duty.  There  is  no  such  thing  as  compensating  a  debt 
due  by  an  agent  for  moneys  collected  by  him  in  the 
performance  of  his  duties,  by  a  debt  due  by  the  prin- 
cipal to  the  agent.  No  officer  of  a  government,  state 
or  municipal,  is  empowered  to  pay  himself  his  salary, 
or  plead  in  compensation  a  demand  made  against  him 
for  moneys  collected  by  him  in  his  official  capacity,  by 

83  New  Orleans  v.  Finnerty,  27 
La.  Ann.  681. 


460  PUBLIC   HEALTH   ADMINISTRATION 

an  amount  due  him  on  account  of  his  salary.  His  duty- 
is  to  discharge  the  obligations  of  his  office  according 
to  the  terms  of  his  acceptance  thereof  and  to  get  his 
pay  as  other  officers  get  theirs.  In  other  words,  he 
cannot  pay  himself." 

The  Illinois  statute  relative  to  the  State  Board  of 
Health  provides84  that  the  secretary  of  the  board 
shall  receive  a  certain  salary,  but  that  other  members 
of  the  board  shall  receive  no  pay,  but  they  shall  be 
allowed  their  traveling  expenses  while  in  the  discharge 
of  their  duty.  There  is  nothing  in  the  chapter,85  which 
defines  the  duties  of  the  board  as  license  examiners, 
providing  for  other  pay  to  any  member  of  the  board 
for  those  services.  There  is  nothing  which  provides 
for  the  appointing  of  two  boards,  but  the  provisions 
as  to  making  the  appointments  are  all  found  in  the  one 
chapter.86  Apparently,  therefore,  the  prohibition  in 
Sec.  11  of  Chapter  126a  against  members,  other  than 
the  secretary,  from  receiving  compensation  applies 
also  to  their  work  as  license  examiners.  Neither  was 
there  for  many  years  any  general  appropriation  made 
by  the  legislature  for  this  work.  Any  resolutions, 
ordinances,  or  other  provisions  made  by  the  board  to 
pay  members  for  such  work  must  therefore  be  con- 
sidered as  unconstitutional  infringement  of  the  legis- 
lative power.  Though  the  acts  do  not  so  specifically 
state,  it  seems,  therefore,  that  all  funds  collected  by  the 
board  in  its  license  capacity,  or  fines  collected,  should 
have  been  paid  into  the  treasury  of  state. 

The  Game  Law  of  Illinois  provided  for  the  appoint- 
ment of  a  Game  Commissioner  and  his  deputies,87  and 

84  Chap.  126a,  See.  11.  »«  126a. 

86  91.  87  in.  Statutes,  Chap.  61. 


OFFICERS  461 

defined  their  duties,  and  stated  what  salaries  they 
should  receive.  The  act  further  provided  for  a  game 
protection  fund  which  was  to  be  accumulated  by 
licenses,  and  collection  of  fines,  etc.  It  further  pro- 
vided that  the  salaries  should  be  paid  from  this  fund. 
It  was  for  some  time  the  custom  of  this  office  to  keep 
this  fund  within  the  office  and  pay  therefrom  the  offi- 
cial salaries.  In  an  opinion  handed  in  February  13, 
1911,  by  Attorney  General  Stead  it  was  held  that  this 
practice  was  contrary  to  the  statutes.  The  state  con- 
stitution provides:88  "Bills  making  appropriation 
for  the  pay  of  members  and  officers  of  the  General 
Assembly,  and  for  the  salaries  of  the  officers  of  the 
government,  shall  contain  no  provision  on  any  other 
subject."  And  in  another  section89  the  constitution 
provides :  ' '  No  act  hereafter  passed  shall  embrace  more 
than  one  subject,  and  that  shall  be  expressed  in  the 
title."  The  title  of  the  game  act  says  nothing  about 
the  appropriation  of  moneys  to  pay  salaries,  and  the 
act,  insofar  as  it  can  be  considered  an  appropriation 
act,  contains  two  distinct  subjects,  and  therefore  inso- 
far it  is  unconstitutional.  The  constitution  further 
provides:90  "No  money  shall  be  drawn  from  the 
treasury  except  in  pursuance  of  an  appropriation  made 
by  law  and  on  presentation  of  a  warrant  issued  by  the 
auditor  thereon."  An  appropriation,  we  are  told,  "is 
an  authority  from  the  legislature  given  at  the  proper 
time  and  in  legal  form,  to  the  proper  officers,  to  apply 
designated  sums  of  money  out  of  that  which  may  be 
in  the  treasury  in  a  given  year  to  specified  objects  and 
demands  against  the  state.     While  it  must  be  express, 

88  Art.  IV,  See.  16.  »o  Art.  IV,  Sec.  17. 

so  Art.  IV,  See.  13. 


462  PUBLIC   HEALTH   ADMINISTRATION 

it  may  not  be  in  any  set  form  of  words,  and  the  fund 
out  of  which  it  is  payable  need  not  be  specified."91 
The  Attorney  General,  therefore,  held  that  the  long 
continued  practice  of  the  department  was  illegal;  that 
moneys  received  should  be  paid  into  the  treasury  of 
the  state,  and  that  all  payments  for  salaries,  and  for 
office  expenses,  must  be  provided  for  by  legislative 
appropriations.  Although  this  opinion  was  only  rela- 
tive to  one  department  its  effect  was  far  reaching,  and 
for  a  time  it  did  much  towards  demoralizing  the 
administration  of  several  departments. 

A  statute  determining  the  amount  of  salary  to  be 
paid  for  services,  is  not  an  appropriation  for  such  pay- 
ment. Though  the  statute  may  not,  specifically,  state 
that  fines,  fees,  and  other  receipts  of  a  department  must 
be  paid  into  the  general  treasury,  both  policy  and  law 
indicate  that  they  should  be  so  paid  into  the  treasury, 
and  that  all  salaries  be  paid  only  on  legal  warrant  from 
moneys  properly  appropriated.  A  contrary  course 
opens  the  way  to  misuse  of  funds,  and  the  employment 
of  the  office  for  private  gain. 

§337.  Unearned  salary  not  assignable.  Since 
there  is  no  contract  in  an  officer's  position,  and  he  is 
liable  to  removal  from  office  at  any  time,  there  is  no 
certainty  that  he  will  earn  more  salary  than  that 
already  earned.  The  assignment  of  unearned  salary 
therefore  might  lead  to  complications.  The  assignee 
would  naturally  desire  to  keep  the  officer  in  his  posi- 
tion, and  assignment  of  salary  might  serve  as  a  bribe 
for  that  purpose.    In  most  American  cases,  following 

91  See  Clayton  v.  Berry,  27  Ark. 
129;  State  v.  Moore,  50  Neb.  88; 
People  v.  Brooks,  16  Cal.  11. 


OFFICERS  463 

the  decisions  of  the  English  courts,  it  has  been  held 
that  such  assignment  of  future  salaries  was  contrary  to 
public  policy,  and  therefore  void.  "Salaries  are  by 
law  payable  after  work  is  performed  and  not  before, 
and  while  this  remains  the  law,  it  must  be  presumed  to 
be  a  wise  regulation  and  necessary,  in  the  view  of  the 
lawmakers,  to  the  efficiency  of  the  public  service.  The 
contrary  rule  would  permit  the  public  service  to  be 
undermined  by  the  assignment  to  strangers  of  all  the 
funds  appropriated  to  salaries.  It  is  true  that,  in 
respect  to  officers  removable  at  will,  this  evil  could  in 
some  measure  be  limited  by  their  removal  when  they 
were  found  assigning  their  salaries;  but  this  is  only 
a  partial  remedy,  for  there  still  would  be  no  means 
of  preventing  the  continued  recurrence  of  the  same 
difficulty.  If  such  assignments  are  allowed,  then  the 
assignees,  by  notice  to  the  government,  would,  on  ordi- 
nary principles,  be  entitled  to  receive  pay  directly 
and  to  take  the  place  of  their  assignors  in  respect  to 
the  emoluments,  leaving  the  duties  as  a  barren  charge 
to  be  borne  by  the  assignors.  It  does  not  need  much 
reflection  or  observation  to  understand  that  such  a 
condition  of  things  could  not  fail  to  produce  results 
disastrous  to  the  efficiency  of  the  public  service."92 
In  this  opinion  most  of  the  American  courts  concur.93 
The  one  dissenting  opinion  in  this  country  was  based 
upon  the  idea  that  the  English  decisions  were  not 
applicable  to  the  conditions  of  society  in  this  country.94 
To  such  a  dictum  it  is  not  probable  that  many  students 
of  English  and  American  jurisprudence  would  agree, 

92  Johnson,  J.,  in  Bliss  v.  Law-  Webb   v.   McCauley,   4   Bush,    10; 
rence,  58  N.  Y.  442.  Field  v.  Chipley,  79  Ky.  260 ;  Story, 

93  Bangs   v.    Dunn,   66   Cal.    72;  Eq.  Jur.,  1040  e;  Story,  Contr.  709. 
Beal  v.  MeVicker,  8  Mo.  App.  202;  94  State  v.  Hastings,  15  Wis.  75. 


464  PUBLIC    HEALTH   ADMINISTRATION 

and  in  Bliss  v.  Lawrence,95  Mr.  Justice  Johnson  says 
with  regard  to  the  Hastings  case:  ''We  do  not  under- 
stand that  the  English  decisions  really  rest  on  any 
grounds  peculiar  to  that  country,  although  sometimes 
expressed  in  terms  which  we  might  not  select  to 
express  our  views  of  the  true  foundation  of  the  doc- 
trine in  question.  The  substance  of  it  all  is  the 
necessity  of  maintaining  the  efficiency  of  the  public 
service,  by  seeing  to  it  that  public  salaries  really  go  to 
those  who  perform  the  public  service.  To  this  extent, 
we  think,  the  public  policy  of  every  country  must  go 
to  secure  the  end  in  view." 

Though  in  Massachusetts  some  cases  were  decided 
without  regard  to  public  policy,  sustaining  the  assign- 
ment of  officer's  future  salaries,96  the  majority  of 
American  courts  have  followed  the  English  decisions 
and  Bliss  v.  Lawrence. 

In  one  American  case  the  conditions  were  peculiar. 
An  officer  had  entered  into  a  partnership  agreement, 
one  clause  of  which  provided  that  any  salaries  or  other 
income  received  from  the  professional  work  of  either 
of  the  partners,  from  any  office  or  employment  should 
be  the  property  of  the  firm.  Such  a  condition  may 
easily  be  found  in  the  municipal  health  service  of 
our  smaller  cities,  where  the  services  of  the  office 
occupy  only  a  portion  of  the  officer's  time.  Such  an 
agreement,  as  respects  the  salary  of  the  officer  was 
held  to  be  valid,  the  court  holding :  ' '  The  case  in  hand 
is  not  that  of  an  assignment  of  an  unearned  salary, 
where  all  control  over  the  expected  funds,  even  to  their 

95  58  N.  Y.  442.  See  also,  Adams  v.  Tyler,  121  Mass. 

96  Brackett  v.  Blake,  7  Met.  335;  380;  Walker  v.  Cook,  129  Mass. 
Mulhall  v.  Quin,  1  Gray  105;  Ma-  577;  Dewey  v.  Garvey,  130  Mass. 
comber    v.    Doane,    2    Allen,    541.  86. 


OFFICERS  465 

reception  in  the  first  instance,  is  passed  over  to  another. 
It  is  but  an  agreement  as  to  the  manner  in  which  the 
salary  shall  be  employed  or  disposed  of,  when  earned 
and  paid.  The  agreement  did  not  take  away  from  the 
parties  the  right  to  receive  their  salaries,  at  such 
periods  as  the  law  appointed  for  payments.  Its  effect 
was  not  to  impair  their  obligations  as  public  officers,  or 
to  present  inducements  to  inefficiency  or  unfaithfulness 
in  the  performance  of  their  public  duties. " 97  It  seems 
very  probable  that  a  general  partnership  agreement, 
by  which  two  physicians  agreed  that  their  professional 
earnings  should  belong  to  the  firm,  would  also  be  held 
to  include  the  salary  which  one  of  them  might  earn  in 
a  public  office.  If,  therefore,  one  of  such  a  firm  be 
appointed  to  such  a  public  office,  where  his  services 
would  be  of  a  professional  nature,  he  should  have  the 
partnership  dissolved,  in  case  he  did  not  wish  to  share 
his  salary  with  his  partner. 

It  is  generally  agreed  that  salaries  already  earned 
are  subject  to  assignment.98 

§  338.  Officers'  salaries  are  not  subject  to  garnishee. 
"It  is  well  settled  that  the  public,  whether  it  be  the 
United  States,  state,  or  municipal  government,  such  as 
that  of  counties,  townships,  cities,  and  school  districts, 
cannot  be  charged  in  garnishment  or  attachment  for 
the  compensation  due  to  its  public  officers.  This 
exemption  is  based  upon  public  policy,  and  is  not  for 
the  benefit  of  the  officer  but  for  that  of  the  public  that 
the  latter  may  not  be  harassed  or  inconvenienced  by 
suit  against  it,  and  that  the  efficiency  of  its  servants  be 

97  Thurston  v.  Fairman,  9  Hun,  442 ;  Birkbeek  v.  Stafford,  14  Abb. 
584,  following  Sterry  v.  Clifton,  9  Pr.  285;  Stephenson  v.  Walden,  24 
C.  B.  110.  Iowa,  84. 

98  Bliss  v.   Lawrence,   58   N.   Y. 


466  PUBLIC   HEALTH   ADMINISTRATION 

not  interfered  with  by  any  uncertainty  as  to  their  pay- 
ment. ' '  "  For  this  reason  it  is  common  that  by  statu- 
tory enactment  such  proceedings  are  prohibited. 

"It  is  also  well  settled  that  a  public  officer,  who  has 
money  in  his  hands  which  is  due  from  him  in  his  official 
capacity  to  a  third  person,  cannot  be  charged  as  the 
garnishee  of  such  person  on  account  of  such  indebted- 
ness. *  *  *  But  if  the  officer  does  not  hold  the 
money  and  owe  a  duty  to  disburse  it  in  his  official 
capacity,  but  merely  as  the  agent,  bailee,  or  debtor  of 
the  third  person,  it  may  be  reached  by  garnish- 
ment."100 

§  339.  Termination  of  official  relation.  Official  rela- 
tionship may  be  terminated  in  any  one  of  several  ways. 
First,  there  is  the  cause  of  nature,  the  death  of  the 
incumbent.  Then  there  are  causes  originating  in  leg- 
islation, as  by  the  expiration  of  the  legal  term,  the 
abolition  of  the  office,  or  the  failure  to  provide  for  the 
necessary  expenses  of  the  service.  There  are  also 
causes  originating  within  the  action,  or  will  of  the 
incumbent,  such  as  the  refusal  to  accept  the  office,  the 
failure  to  attend  to  the  duties  of  the  office,  the  accept- 
ance of  an  incompatible  office,  the  abandonment  of  the 
office,  or  resignation.  Finally,  there  are  causes  orig- 
inating external  to  the  incumbent,  as  by  removal, 
either  with,  or  without  trial,  or  by  the  court  upon  the 
finding  that  the  incumbent  is  not  properly  possessed  of 
his  position. 

§  340.  Death.  The  death  of  an  officer  creates  an 
absolute  vacancy.  The  constitutions,  statutes,  and 
ordinances  generally  make  provision  for  such  an  emer- 

99  Meehem,  Pub.  Off.  875,  citing  ioo  Mechem,  Pub.  Off.  876,  cit- 

eases.  ing  cases. 


OFFICERS  467 

gency.  Perhaps  this  provision  may  be  found  only  in 
the  general  provision  of  authority  to  fill  vacancies. 
Death,  then,  creates  a  vacancy.1  In  the  absence  of  pro- 
visions to  the  contrary,  the  office  of  the  deputy  expires 
with  that  of  the  principal  upon  which  the  deputy 
depends,2  but  in  the  absence  of  express  provision  of 
this  nature,  which  is  generally  found,  even  common 
law  provides  that  an  officer  holds  over  after  the  expira- 
tion of  his  term,  until  his  successor  has  been  appointed 
and  qualified.3  "When  the  law  gives  him  power  to 
appoint  a  deputy,  such  deputy,  when  created,  may 
do  any  act  that  the  principal  might  do.  He  cannot 
have  less  power  than  the  principal."4  In  the  case  of 
the  death  of  the  principal,  therefore,  the  deputy  may 
continue  to  do  the  work  of  the  office  until  a  new  prin- 
cipal shall  be  appointed.  He  may  do  any  acts  which 
the  principal  may  do,  and  clearly  his  authority  would 
be  commensurate,  and  not  exceed  that  of  the  principal 
while  he  was  living.  Where,  however,  the  deputy  is 
a  special  deputy,  appointed  for  a  specific  service,  he  is 
regarded  not  as  a  public  officer,  but  as  a  private  agent.5 
While,  as  a  matter  of  public  policy,  such  a  special 
deputy  might  be  permitted  to  continue  his  special 
work,  his  authority  might  be  open  to  question,  and  it 
would  cease  on  the  appointment  of  a  new  principal. 
The  power  to  make  a  deputy,  if  not  expressly  given 

i  Yonkley  v.  State,  27  Ind.  236;  Ellison  v.  Stevenson,  6  T.  B.  Mon. 

Hedley  v.  Commissioners,  4  Blackf.  275;  Triplett  v.  Gill,  7  J.  J.  Marsh, 

116;  State  v.  Jones,  19  Ind.  516.  444;    Commonwealth  v.   Arnold,   3 

2  Banner  v.  McMurray,  1  Dev.  L.  Littell,  316;   Hope  v.   Sawyer,   14 
218;  Greenwood  v.  State,  17  Ark.  111.  254. 

332.  s  Meyer  v.  Bishop,  27  N.  J.  Eq. 

3  People  v.  Oulton,  28  Cal.  44.  141 ;  Meyer  v.  Patterson,  28  N.  J. 
4Abrams  v.  Ervin,  9  Iowa,  87;      Eq.  239. 

Parker  v.  Kett,  1   Ld.  Raym.  658; 


468  PUBLIC   HEALTH  ADMINISTRATION 

by  enactment,  may  be  open  to  question.  Generally 
speaking,  an  officer  with  discretion  may  not  delegate 
his  authority.6  But  ministerial  duties  may  be  so  dele- 
gated.7 In  so  far  as  a  health  officer's  duties  are  minis- 
terial, such  as  the  recording  of  vital  statistics,  for 
example,  those  duties  may  be  delegated.  So  far  as 
they  are  judicial,  and  dependent  upon  the  exercise  of 
reason,  the  health  official's  duties  may  not  be  per- 
formed by  a  deputy.  Employees  are  not  deputies. 
Neither  are  subordinate  officers  deputies.  If  there  be 
subordinate  public  offices  in  the  department,  the  act 
providing  for  the  office  also  defines  the  duties  of  the 
officer,  and  the  death  of  his  superior  would  then  make 
no  difference  with  the  duties  of  the  subordinate. 
Unless,  therefore,  there  be  a  specific  provision  for  the 
continuance  of  the  work  of  the  health  office  in  the  case 
of  the  death  of  the  health  officer,  or  provision  for  the 
appointment  of  a  deputy,  all  authority  vested  with 
discretion  in  the  office  would  cease  until  the  appoint- 
ment of  a  successor. 

When  the  deceased  officer  was  one  of  two  or  more 
officers  holding  a  joint  authority,  though  the  death 
creates  a  vacancy  to  be  filled,  the  whole  office  is  not 
vacant,  and  the  survivors  may  continue  to  exercise  the 
authority,  and  perform  the  duties  of  the  office,  unless 
it  be  expressly  required  by  the  law  that  the  joint  action 
of  all  is  needed.8 

§  341.  Abolition  of  office.  Since  there  is  nothing  in 
the  nature  of  a  contract  in  an  office,  it  follows  that  the 

e  State  v.  Patterson,  34  N.  J.  L.  »  People  v.  Palmer,  52  N.  Y.  84; 

163.  Dowling  v.  Rugar,  21  Wend.  178. 

7  Abrams  v.  Ervin,  9  Iowa,  87 ; 
Edwards  v.  Watertown,  24  Hun, 
428. 


OFFICERS  469 

legislative  body  which  created  the  office  may  at  any 
time  abolish  the  same.  If  there  be  no  office,  there  can 
be  no  duties,  and  no  services  may  be  rendered.  Since 
the  compensation  depends  upon  the  rendition  of  ser- 
vices, there  can  be  no  compensation.  There  being  no 
office,  there  can  be  no  officer,  and  the  retirement  of  the 
incumbent  under  such  circumstances  produces  no 
vacancy.  This  is  true  whether  the  office  be  abolished 
directly,  by  repeal  of  the  enactment  creating  the 
office,  or  indirectly,  as  by  the  abolition  of  the  office 
upon  which  the  subordinate  office  depends,  or  possi- 
bly by  failure  to  make  appropriation  for  the  support 
of  the  office,  as  has  been  mentioned  in  a  preceding 
section.  Mechem  says:9  "So  the  legislature  may 
declare  the  office  vacant,10  or  may  transfer  its  duties 
to  another  officer,11  although  the  effect  may  be  to 
remove  the  officer  in  the  middle  of  his  term,  or  to 
abolish  his  office  by  leaving  it  devoid  of  duties. ' '  This 
entire  paragraph  is  unfortunately  misleading.  The 
first  case  cited  has  to  do  with  the  result  of  the  canvass 
of  election  returns.  By  the  general  constitutions  and 
statutes  the  legislatures  are  the  judges  of  the  validity 
of  the  rights  of  their  own  members  to  their  seats.  As 
such  they  are  not  strictly  legislatures,  but  are  vested 
with  the  judicial  determination  of  certain  questions. 
It  is  only  in  such  cases  that  the  legislature  may  declare 
an  office  vacant,  and  then  not  as  an  act  of  legislation, 
but  of  legal  decision,  there  having  been  no  valid  elec- 
tion. To  grant  to  the  legislature  such  power  to 
directly  remove  an  officer  would  be  to  interfere  with 
the  executive  right  of  appointment.    Since  legislative 

9  Pub.  Off.  465.  ii  Attorney  Gen.  v.  Squires,  14 

io  Prince  v.  Skillin,  71  Me.  361;       Cal.  13. 
State  v.  Davis,  44  Mo.  129. 


470  PUBLIC   HEALTH   ADMINISTRATION 

officers  are  within  the  appointing  power  of  their  own 
bodies,  so  in  such  cases  also  the  legislature  would 
have  the  authority  to  remove  the  appointee.  So  as  to 
the  power  to  practically  abolish  an  office  by  transfer- 
ring its  duties,  the  abstract  statement  may  be  open  to 
question.12  If  it  be  the  intention  to  abolish  an  office 
that  intention  should  be  clearly,  and  indubitably  ex- 
pressed by  the  direct  act  of  abolition.  If  the  duties 
be  simply  transferred  to  another  office,  leaving  the  old 
office  without  duties,  it  might  readily  be  claimed  that 
it  was  the  intention  of  the  legislature  to  assign  to  the 
old  office  other  duties ;  otherwise,  why  did  it  still  per- 
mit the  office  to  exist?  It  is  therefore  probable,  though 
not  certain,  that  if  an  office  be  left  with  a  salary 
attached,  even  though  there  be  no  services  to  be  per- 
formed in  the  line  of  duty,  the  incumbent  might  still 
retain  his  office  and  draw  his  salary.  It  has  even  been 
held  that  the  legislature  may  not  abolish  an  office  by 
a  reduction  in  the  salary  or  other  compensation,13  nor 
remove  an  officer  by  shortening  his  term.14  Unless 
forbidden  by  the  constitution,  or  where  the  matters 
are  denned  in  the  constitution,  the  legislature  may 
make  such  changes  in  the  terms  of  officers  as  it  may 
think  proper,  but  it  must  not  attempt  to  evade  con- 
stitutional limitations  by  subterfuge.  If,  therefore, 
the  legislature  determines  to  abolish  an  office,  the 
rights  of  the  incumbent  cease. 

§342.  Expiration  of  term.  The  duration  of  the 
term  of  office  is  ordinarily  expressed  in  the  commis- 
sion.   The  constitution  or  the  statutes  define  the  term 

12  Warner    v.    People,    2    Denio,  i3  Conner  v.  Mayor,  2  Sand.  355. 

272;  People  v.  Albertson,  55  N.  Y.  instate   v.   Wiltz,    11    La.    Ann. 

50;   Hoke  v.  Henderson,  4  Dev.  1.       439. 


OFFICERS  471 

of  office,  if  there  be  a  term,  including  thus  under  the 
word  ''statutes"  all  enactments  subordinate  to  the 
constitution.  The  term  may  be  fixed  according  to  cer- 
tain days,  as  the  "first  of  January,"  or  it  may  be 
simply  defined  as  to  duration.  The  commission  should 
state  the  time  during  which  it  is  good.  Whenever 
there  may  be  question  as  to  the  legal  interpretation 
of  the  enactments  defining  the  term  of  the  officer,  that 
interpretation  will  be  adopted  which  fixes  the  shortest 
time.15  The  date  from  which  a  term  is  to  be  reckoned 
is  always  exclusive.16  At  the  expiration  of  the  term 
of  office,  authority,  and  with  it  the  rights,  duties,  and 
privileges  of  the  office  cease.17  Sometimes  the  statutes 
expressly  forbid  the  continuance  in  office  after  the 
expiration  of  the  term  for  which  appointed  or  elected, 
as  in  the  case  of  Treasurers.  When  the  term  is  fixed 
in  the  constitution  the  legislature  may  not  provide  that 
an  incumbent  shall  hold  over  until  his  successor  qual- 
ifies.18 It  is,  however,  generally  true  that  either  in 
the  constitutions  or  the  statutes  provision  is  made  that 
an  officer  once  qualified  shall  hold  over  until  his  suc- 
cessor has  qualified.  This  provision  does  not  apply 
when  a  successor  cannot  be  legally  chosen  to  fill  the 
position,  as  to  an  office  in  a  municipality  which  has 
been  dissolved.19  An  officer  holding  over,  under 
authority  of  the  constitution  or  the  statutes,  is  an  offi- 
cer de  jure,  and  not  de  facto.  In  such  a  case,  if  the 
appointment  is  to  be  made  by  the  Governor,  by  and 

15  Wright  v.  Adams,  45  Tex.  134.  laBeckwith    v.    Eacine,    7    Biss. 

is  Best  v.  Polk,  18  Wall.  112.  142;    Barkley    v.    Levee    Commis- 

i7  Badger  v.  U.  S.,  93  U.  S.  599;       sioners,  93  U.  S.  258. 
People  v.  Tieman,  30  Barb.  193. 

i8  State    v.    Brewster,    44    Ohio, 
589. 


472  PUBLIC   HEALTH   ADMINISTRATION 

with  the  consent  of  the  senate,  there  is  no  such  vacancy 
as  would  permit  of  the  appointment  in  case  the  senate 
was  not  in  session.20  In  the  absence  of  a  law  permit- 
ting the  incumbent  to  hold  over,  he  may  continue  in 
office,  pending  the  qualification  of  a  successor,  as  an 
officer  de  facto,  if  not  de  jure.  An  officer  thus  holding 
over  will  be  entitled  to  the  compensation  for  the  ser- 
vice, where  his  holding  over  may  be  through  no  fault 
of  his.21 

§343.  When  an  officer  may  not  hold  over.  There 
are  certain  cases  in  which,  in  spite  of  a  general  pro- 
vision empowering  an  officer  to  hold  over  his  official 
term,  he  is  not  entitled  thus  to  lawfully  remain  in 
office.  Where  an  officer  is  a  candidate  as  his  own  suc- 
cessor, and  after  being  elected  he  fails  to  qualify,  it 
has  been  held  that  he  is  not  entitled  to  hold  over  under 
the  general  provision,  but  that  his  right  has  ceased, 
and  that  there  is  a  vacancy.22  However,  it  has  also 
been  held  to  the  contrary,  that  the  incumbent  is  en- 
titled to  remain  under  exactly  similar  conditions.23 
Where  the  incumbent  has  been  duly  reelected,  and  has 
qualified  after  the  issuance  of  his  commission,  but  it 
has  later  been  legally  determined  that  the  election  was 
void,  a  vacancy  results,  and  the  failure  of  the  elec- 
tion does  not  revive  the  prior  right  to  hold  over.24  In 
such  a  case,  the  second  qualification  serves  as  a  renun- 
ciation of  rights  under  the  old  election,  and  the  incum- 
bent is  by  his  own  action  estopped  from  setting  up  a 
claim  based  on  former  occupancy.     However,  it  has 

20  People  v.  Forquer,  1  111.  104;  23  Bath  v.  Reed,  78  Me.  276; 
People  v.  Bissell,  49  Cal.  407.  State  v.  Berg,  50  Ind.  496. 

21  Hubbard  v.  Crawford,  19  Kas.  24  Handy  v.  Hopkins,  59  Md.  157 ; 
570.  Ex  parte  Smith,  8  S.  C.  495;  Ex 

22  Scott  v.  Ring,  29  Minn.  398.  parte  Norris,  8  S.  C.  408. 


OFFICERS  473 

also  been  held  under  such  circumstances  that  the 
incumbent  may  still  hold  over.25  Since  a  person  may 
not  profit  from  his  own  misdeeds,  an  officer  is  not 
entitled  to  hold  over,  when  by  his  action  he  prevents 
his  successor  in  office  from  qualifying.26 

§344.  Abandonment  of  office.  Failure  to  qualify, 
It  is  possible  that  an  appointee  may  voluntarily  relin- 
quish his  right  to  the  office  at  any  time  from  the  mo- 
ment of  his  appointment,  to  the  close  of  his  official 
term.  The  laws  stipulate  certain  things  which  an  offi- 
cer must  do  before  he  may  lawfully  be  considered  an 
officer  de  jure,  such  as  taking  the  official  oath,  filing  an 
acceptance,  furnishing  an  official  bond,  and  the  like. 
Clearly,  if  an  officer  neglect  or  refuse  to  do  the  acts 
thus  specified,  he  thereby  expresses  his  refusal  of  the 
office,  and  his  embryo  official  relations  thereby  cease. 
A  refusal  to  perform  the  duties  imposed  by  law  upon 
the  office  works  a  forfeiture  of  the  official  right.27  The 
laws  generally  state  that  these  preliminary  steps  must 
be  taken  before  the  appointee  takes  the  office,  or  within 
a  stipulated  time.  It  is  generally  agreed  that  these 
directions  are  directory,  rather  than  mandatory,  and 
that  a  failure  to  comply  with  the  exact  letter  of  the 
law  in  this  regard  does  not  work  a  forfeiture.28  Cer- 
tainly, when  the  failure  to  thus  qualify  was  due  to  no 
fault  of  the  appointee,  such  failure  can  not  be  said  to 

25  Forrestal  v.  People,  3  111.  App.  Watts,  538 ;  Olney  v.  Pearce,  1  R. 
470;   Stadler  v.  Detroit,   13  Mich.      I.  292. 

346.  28  Chicago  v.  Gage,  95  111.  593; 

26  State  v.  Steers,  44  Mo.  223.  People  v.  Holley,   12   Wend.   481 ; 

27  State  v.  Allen,  21  Ind.  516;  State  v.  Churchill,  41  Mo.  41;  State 
People  v.  Kingston,  T.  R.  Co.,  23  v.  Porter,  7  Ind.  204;  State  v.  Col- 
Wend.  193;  People  v.  Hartwell,  67  vig,  15  Ore.  57;  State  v.  Peck,  30 
Cal.    11;     Neale    v.    Overseers,    5  La.  Ann.  280. 


474  PUBLIC    HEALTH  ADMINISTRATION 

work  a  forfeiture.29  Thus,  where  the  giving  of  a  bond 
was  delayed  pending  a  contest,  and  doubt  as  to  who 
is  entitled  to  the  office  results,  such  delay  does  not  work 
a  forfeiture.30  If  the  officer  finally  files  his  bond,  takes 
the  oath,  and  does  the  other  preliminary  acts  demanded, 
and  those  charged  with  the  duty  formally  accept  the 
bond,  etc.,  any  default  is  thereby  waived,  and  the  officer 
thereby  becomes  de  jure.31 

§345.  Abandonment  after  qualification.  In  the 
case  of  the  Earl  of  Shrewsbury,32  Lord  Coke  defined 
three  causes  of  forfeiture  of  office;  Abuser,  Nonuser, 
and  Refusal. 

§346.  Malfeasance.  Malfeasance  in  office  works  a 
forfeiture.33  This  forfeiture  is  not  immediate  and 
self  operative,  but  it  requires  the  action  of  the  court  or 
the  appointing  power  to  make  the  effect  complete.  Mal- 
feasance is  a  willful  perversion  of  official  conduct.  It 
is  necessary  to  draw  a  distinction  between  the  charac- 
ter of  the  officer,  and  the  character  of  the  man  who 
occupies  the  office.34  It  has  been  held  that  intoxica- 
tion is  not  within  a  constitutional  provision  providing 
for  the  removal  of  an  officer  for  malfeasance  in  office, 
and  a  statute  pronouncing  it  malfeasance,  and  thus 
providing  for  the  removal  of  the  officer,  was  unconstitu- 
tional.35 So  where  a  police  justice  was  charged  with 
intoxication  it  was  held  that  he  was  entitled  to  show 

29  Ross    v.    Williamson,    44    Ga.  Common-wealth  v.  Chambers,  1  J.  J. 

501;  State  v.  Hadley,  27  Ind.  496.  Marsh,    160;    State   v.    Leach,    60 

so  People  v.  Potter,  63  Cal.  127;  Mo.  58. 

Pearson  v.  Wilson,  57  Miss.  848.  34  Commonwealth  v.  Barry,  Har- 

3i  Chicago  v.  Gage,  95  111.  593;  din,  229;  Commonwealth  v.  Cham- 
Ross  v.   Williamson,   44  Ga.    501;  bers,  1  J.  J.  Marsh,  160. 
Cronin  v.  Gundy,  16  Hun,  520.  35  Commrs.  v.  Williams,   79  Ky. 

32  9  Coke,  50.  42. 

33  Minkler  v.  State,  14  Neb.  181 ; 


OFFICERS  475 

in  defense  that  he  performed  his  official  duties  hon- 
estly, impartially,  and  otherwise  competently.36  It 
was  held  in  another  case  that  the  officer  might  be 
removed  if  he  was  intoxicated  while  attempting  to 
perform  official  duties,  but  not  for  intoxication  at 
other  times.37  All  of  these  cases  are  based  upon  a  true 
interpretation  of  the  law.  The  private  character,  as 
such,  has  nothing  to  do  with  the  official  character.  But, 
as  a  physiologic  fact,  and  from  a  psychologic  stand- 
point, these  decisions  may  be  open  to  question,  for  it 
may  well  be  doubted  whether  the  mind  which  is  at 
times  benumbed  by  the  effects  of  alcohol  may  be  able 
to  perform  its  official  acts  with  normal  precision. 
Therefore  it  is  that  we  find  other  cases,  in  seeming  con- 
flict with  the  foregoing  citations,  in  which  officers  have 
been  removed  from  office  for  intoxication  even  when 
off  duty.38  There  is  no  necessary  conflict  between 
these  two  lines  of  cases.  In  one  the  stress  is  laid  upon 
the  distinction  between  the  private  and  the  public  life 
of  the  officer,  and  in  the  other  the  greater  importance 
is  given  to  physiologic  facts. 

Secondly,  malfeasance  does  not  mean  simply  a  mis- 
taken action,  or  an  error  in  judgment.  Such  an  error 
may  be  serious  in  its  results,  and  work  great  harm.  It 
may  further  demonstrate  the  fact  that  the  officer  is  not 
qualified  for  the  position  which  he  holds,  but  it  is  not 
malfeasance.  It  is  rather  misfeasance.  An  officer 
vested  with  discretion  may  do  anything  within  that 
discretion,  and  it  will  not  be  deemed  that  he  has  been 
guilty  of  malfeasance.    But,  as  we  have  heretofore 

36  In  re  Grogan,  24  N.  Y.  St.  R.  38  MeComas  v.  Krug,  81  Ind.  327; 

473;   5  N.  Y.  Supp.  499.  People  v.  French,  102  N.  Y.  583; 

st  People  v.  Police  Commrs.,  20  People  v.  Partridge,  13  Abb.  N.  C. 

Hun,  333.  (N.  Y.)   410. 


476  PUBLIC    HEALTH   ADMINISTRATION 

shown,  discretion  does  not  include  arbitrary  decisions. 
Discretion  implies  the  use  of  knowledge  and  reason. 
Within  discretion,  the  action  is  lawful.  In  the  case 
of  ministerial  duties  only  that  must  be  done  which  is 
prescribed,  and  none  of  that  demanded  in  the  law 
can  be  omitted.  It  is  presumed  that  the  officer  knows 
what  his  duties  are,  and  therefore  a  failure  to  do  that 
which  the  law  requires,  or  a  doing  of  that  which  the 
law  does  not  permit,  would  be  a  willful  perversion  of 
official  position.  That  is  malfeasance,  even  though 
there  was  no  malicious  motive,  nor  corrupt  cause.39 

"When  an  officer  acting  in  his  official  capacity,  and 
under  his  official  signature  does  an  act  which  has  rela- 
tion and  refers  to  matters  belonging  to  his  department, 
and  under  his  particular  charge,  and  he  acts  know- 
ingly, designedly,  falsely,  and  the  act  is  one  calculated 
to  mislead,  and  one  that  in  its  nature  may  be  used  for 
purposes  of  fraud  or  imposition,  it  is  misconduct  in 
office  within  the  intent  of  this  statute.  And  this, 
although  no  actual  corruption  by  bribery  or  otherwise 
is  proved. ' ' 40  Clearly,  if  coupled  with  the  willful  mis- 
deeds there  be  a  corrupt  motive,  or  if  they  arose  from 
a  malicious  intent,  there  could  be  no  question  as  to 
the  fact  of  malfeasance.  Arbitrary  use  of  power,  espe- 
cially with  corrupt,  or  malicious  intention  is  mal- 
feasance. Where  a  health  department  is  used,  as  dur- 
ing the  reign  of  the  Tweed  ring  in  New  York,  for  the 
collection  of  blackmail,  or  for  intimidation  for  political 
or  other  purpose,  it  is  malfeasance,  and  should  receive 
the  strongest  punishment,  by  immediate  forfeiture  of 
office,  coupled  if  possible  with  criminal  prosecutions. 

sa  Minkler  v.  State.  14  Neb.  181.  40  State  v.  Leach,  60  Mo.  58. 


OFFICERS  477 

§347.  Nonuser  as  cause  of  forfeiture.  The  simple 
fact  that  an  officer  fails  to  perform  the  duties  of  his 
office,  even  possibly  for  some  considerable  time,  would 
not  be  considered  to  work  a  forfeiture  of  office,  espe- 
cially when  such  nonuse  of  the  office  may  be  a  matter 
beyond  the  will  of  the  officer.  The  fact  of  his  being 
detained  by  personal  sickness  will  not  be  deemed  a 
surrender  of  the  office,  even  though  he  thus  remain 
from  his  duties  for  more  than  fifty  days.41  Absence 
from  office  may  be  a  cause  for  removal  from  office,  even 
though  it  be  not  in  itself  a  forfeiture.42  For  the 
absence  to  work  a  forfeiture,  there  must  be  a  clear  in- 
tent of  the  holder  to  relinquish  his  position.43  In  this 
case  the  office  had  been  relinquished  under  a  mistaken 
opinion  that  another  had  been  elected,  and  for  a  period 
of  two  years  there  was  no  attempt  to  perform  the 
duties  of  the  office.  On  the  other  hand,  in  Turnipseed 
v.  Hudson,44  the  office  was  relinquished  to  a  successor 
who  had  been  elected  under  a  new  law,  which  was  later 
declared  unconstitutional.  It  was  claimed  by  the  court 
that  the  relinquishment  under  such  conditions,  in 
accord  with  the  act  which  was  in  force  at  the  time,  did 
not  work  a  forfeiture  when  the  act  was  wiped  out. 
When  an  officer  enlisted  in  the  volunteer  army,  to  serve 
for  a  term  of  three  years,  or  until  the  close  of  the  war, 
it  was  held  that  such  an  act  was  clear  declaration  of 
intention  to  abandon  the  duties  of  the  office.45  When 
the  law  requires  that  an  officer  shall  reside  in  his 
district,  a  removal  from  the  district  will  work  a  for- 
feiture.46    But  if  the  removal  be  clearly  temporary, 

4i  State  v.  Baird,  47  Mo.  301.  45  State  v.  Allen,  21  Ind.  516. 

*2  Page  v.  Hardin,  8  B.  Mon.  648.  46  Yonkley  v.  State,  27  Ind.  236 ; 

43  People  v.  Hartwell.  67  Cal.  11.  Curry    v.    Stewart,    8    Bush,    560; 

44  50  Miss.   429.  Prather  v.  Hart,  17  Neb.  598. 


478  PUBLIC   HEALTH   ADMINISTRATION 

and  with  no  intention  to  abandon  the  office,  no  for- 
feiture will  be  held  to  have  been  worked.47  Where 
there  has  been  a  complete  abandonment  of  the  office 
by  the  officer,  it  cannot  again  be  resumed  by  him,48  and 
no  accidental,  or  forcible  reoccupancy  can  give  him 
title  thereto.49 

§348.  Refusal  to  perform  the  duties  of  the  office. 
"After  once  accepting  an  office,  refusal  to  serve  is 
a  cause  of  forfeiture,  if  without  good  reason;  but  how- 
ever general  and  absolute,  it  is  not  a  forfeiture,  per 
se."50  The  refusal  to  act  may  not  rest  within  the 
officer's  discretion.  So,  where  an  officer  is  in  posses- 
sion, the  question  whether  or  not  he  has  forfeited  his 
right  thereto  cannot  be  tested  collaterally.51  Neither 
may  a  new  appointment  be  made  to  fill  the  vacancy, 
until  after  a  judicial  determination  of  the  fact  of 
forfeiture.52 

Although  for  an  officer  de  jure  to  refuse  to  act  is 
a  cause  of  forfeiture,  for  the  officer  de  facto  it  con- 
stitutes the  forfeiture  itself.  If  he  still  claimed  the 
office  and  attempted  to  do  other  portions  of  the  duty 
of  the  office,  but  refused  to  do  some  particular  portion, 
and  harm  thereby  resulted,  he  could  be  held  personally 
liable  for  his  negligence,  or  malfeasance.53  So  long  as 
he  claims  the  position  he  may  be  forced  by  mandamus 
to  perform  the  duties  of  the  office,54  but  when  the  offi- 

*7  State  v.  Graham,  26  La.  Ann.  62  State  v.  Bryce,   7  Ohio,  Part 

568;    McGregor   v.   Allen,    33    La.  II,  82. 

Ann.  870.  53  Longacre  v.  State,  3  Miss.  637. 

48  Yonkley  v.  State,  27  Ind.  236.  54  Runion    v.    Latimer,    6    Rich, 

*s  State  v.  Allen,  21  Ind.  516.  126;  Kelly  v.  Wimberly,  61  Miss. 

so  Van  Orsdall  v.  Hazard,  3  Hill,  548. 
243. 

si  McKim    v.    Somers,    1    Penn. 
297. 


OFFICERS  479 

cer  de  facto  disavows  authority,  and  refuses  to  per- 
form the  duties,  he  can  incur  no  personal  liability 
thereby,55  nor  subject  himself  to  punishment  under 
the  statutes.56  Receiving  neither  the  honor  of  the 
trust,  nor  pecuniary  compensation,  manifestly  no  man 
can  be  blamed  if  he  refuses  to  do  the  work  of  an  office 
for  which  he  can  receive  no  reward. 

§  349.  Acceptance  of  incompatible  office.  It  is  con- 
trary to  law  that  a  man  should  attempt  to  hold  at  the 
same  time  two  offices  whose  duties  conflict.  As  a  gen- 
eral proposition  the  acceptance  of  an  incompatible 
office  vacates  the  first  without  any  other  act  or  proceed- 
ing.57 Without  judgment  of  ouster  all  compensation 
attached  to  the  first  office  is  forfeited  from  the  moment 
that  the  second  office  is  accepted.58  According  to  the 
common  law,  therefore,  the  office  may  be  immediately 
filled,  by  election  or  appointment,  as  provided,  and 
without  quo  warranto  or  other  proceedings.59  It  must 
be  remembered  that  there  are  certain  exceptions  to  the 
general  rule  relative  to  the  forfeiture  of  the  former 
office.  This  subject  has  been  discussed  under  the 
qualifications  of  officers,  and  these  variations  in  the 
general  rule  will  not  here  be  further  considered  than 
simply  to  say  that  if  there  be  a  question  whether  the 
former  office  be  vacated  by  accepting  a  second,  or  to 
oust  from  the  second  office,  leave  should  be  asked  for 
permission  to  file  information  in  the  nature  of  quo  war- 

ssOlmstead  v.  Dennis,  77  N.  Y.  1229;  State  v.  Goff,  15  E.  I.  505; 

378.  People  v.  Hanifan,  96  111,  420. 

so  Bentley   v.    Phelps,    27    Barb.  ss  State  v.  Comptroller  General, 

524.  9  S.  C.  259. 

67  State  v.  Brinkerhoff,  66  Tex.  59  state  v.  Buttz,  9   S.  C.   156 ; 

45;   Pooler  v.  Reed,  73   Me.  129;  Shell  v.  Cousins,  77  Va.  328. 
State    v.    Dellwood,    33    La.    Ann. 


480  PUBLIC   HEALTH   ADMINISTRATION 

ranto.  In  other  words,  the  acceptance  of  a  second 
office,  incompatible  with  the  first,  may,  ipso  facto,  for- 
feit the  first  office,  or  it  may  simply  be  a  cause  of  vacat- 
ing either  the  first  or  the  second  office,  according  to 
conditions.  The  choice  as  to  which  office  shall  be  con- 
sidered vacant  does  not  rest  with  the  holder  after  he 
has  made  his  choice  by  accepting  the  second  position, 
and  even  when  he  finds  that  his  claim  upon  the  second 
position  is  worthless,  through  defect  of  election  or 
appointment,  the  forfeiture  of  the  first  position  is  com- 
plete.60 

§  350.  Resignation.  He  who  so  acts  as  to  forfeit  his 
office  has  impliedly  resigned.  Since  a  man  may  not 
accept  an  incompatible  office  without  forfeiting  his 
former  position,  the  fact  of  the  second  acceptance  is, 
per  se  an  expression  of  willingness  to  be  relieved  of 
the  duties  and  responsibilities  of  his  former  service., 
Essentially  he  has  resigned.  In  form  he  has  not 
resigned,  and  since  there  may  be  some  question  as  to 
his  legal  ability  to  hold  the  two  offices,  if  it  be  his  wish 
to  retire  from  the  first  office  he  should  resign  formally, 
to  remove  all  doubt. 

A  resignation  implies  three  distinct  actions :  1.  The 
office  is  handed  back  from  the  holder  to  the  state  as 
represented   by   some   proper    officer    of    superiority. 

2.  The  office  is  received  by  such  representative  officer. 

3.  The  responsibilities  of  the  office  are  accepted  by  the 
superior  officer,  for  transmission  to  a  subsequent 
holder.  Until  the  third  of  these  steps  has  been  com- 
pleted, the  incumbent  is  not  free  from  the  duties  of 
his  position.  It  therefore  happens  that  an  officer  may 
not  resign  his  position  without  the  consent  of  the 

eo  Rex  v.  Hughes,  5  B.  &  C.  886. 


OFFICERS  481 

appointing  power,  either  expressed,  or  implied,  for 
example,  by  an  appointment  made  to  an  incompatible 
office.61  It  has,  however,  been  repeatedly  held  in  the 
United  States  that  any  officer  has  the  unqualified  right 
to  resign  an  office,62  and  in  one  case  it  was  held  that 
this  right  existed,  and  the  resignation  took  effect, 
although  the  appointing  power  expressly  refused  to 
accept  the  resignation.63  There  may  possibly  be  some 
question  as  to  whether  the  appointing  power  is  bound 
to  accept  an  absolute  resignation,  but  according  to  the 
common  law  an  office  is  a  public  duty  which  it  is  the 
duty  of  citizens  chosen  to  accept.64  Penalties  are  some- 
times provided  for  refusal  to  serve,  and  officers  who 
are  thus  negligent  of  their  public  duties  may  some- 
times be  proceeded  against  by  criminal  trial.65  As  a 
general  statement,  the  office  is  not  relinquished  until 
the  resignation  is  formally  accepted  and  a  successor 
appointed  and  qualified. 

The  resignation  need  be  in  no  special  form,  unless 
that  form  be  prescribed  by  law.  When  so  prescribed 
the  exact  form  must  be  observed.66  The  resignation 
may  be  oral,  but  it  should  be  definite  in  form,  and  pref- 
erably in  writing.  There  can  then  be  no  question 
as  to  what  was  intended.  It  should  be  given  to  the 
officer  or  body  authorized  by  law  to  receive  the  same ; 
or  in  the  absence  of  such  a  statutory  provision,  to  the 
officer  or  body  having  the  appointive  power  over  the 

ei  Edwards  v.  U.  S.,   103  U.  S.  64  Edwards  v.  U.   8.,   103  IT.   S. 

471;    Van    Orsdall    v.    Hazard,    3  471. 

Hill,  243.  er>  Rex    v.    Mayor,    4    Doug.    14; 

«2  People   v.   Porter,    6   Cal.    26 ;  Rex  v.  Leyland,  3  M.  &  S.  184. 

Leech  v.  State,  78  Ind.  570;  Gates  go  Barbour  v.  U.  S.,  17  Gt.  of  CI. 

v.  Delaware  County,  12  Iowa,  405;  1499;    Van   Orsdall   v.    Hazard,    3 

Olmsted  v.  Dennis,  77  N.  Y.  378.  Hill,  243. 

63  State  v.  Mayor,  4  Neb.  260. 


482  PUBLIC    HEALTH   ADMINISTRATION 

position.  So  also,  the  acceptance  of  the  resignation 
should  be  so  clear  and  unmistakable  that  no  possible 
question  may  subsequently  be  raised.  Sometimes  the 
acceptance  is  shown  simply  by  the  appointment  of  a 
successor.  The  appointment  of  the  successor,  how- 
ever, is  a  transaction  between  the  appointive  power 
and  the  party  appointed,  and  does  not  of  itself  touch 
the  predecessor.  It  is  really  only  an  evidence  of  the 
acceptance  of  the  resignation,  and  not  an  acceptance 
itself.  It  would  be  far  better  that  the  acceptance  be 
formal,  and  in  writing,  and  that  it  further  direct  to 
whom  the  resigning  officer  shall  transfer  all  moneys, 
books,  and  other  property  in  his  possession.  Even  the 
acceptance  of  the  resignation  is  not  sufficient  to  release 
an  officer  until  his  successor  has  been  duly  qualified 
in  many  offices  of  trust.67 

A  resignation  once  made  may  only  be  withdrawn 
with  the  consent  of  the  superior,  though  it  has  been 
held  that  a  prospective  resignation  is  not  a  real  resig- 
nation, but  rather  is  it  a  notice  of  intention  to  resign ; 
and  if  it  be  so  regarded  it  is  subject  to  withdrawal 
at  any  time,  unless  new  rights  have  arisen  by  the 
appointment  of  a  successor.68  On  the  other  hand,  it 
has  repeatedly  been  held  that  a  resignation  once 
offered  cannot  be  withdrawn,  even  with  the  consent 
of  the  superior,69  unless,  possibly,  where  the  power 
to  accept  the  resignation  rests  in  the  same  hands  as 
the  power  to  fill  the  vacancy.70  Resignation  to  an 
office  made  while  in  a  state  of  unsound  mind,  when 


67  Badger  v.  U.  S.,  93  U.  S.  599 
Jones  v.  Jefferson,  66  Tex.  576 
People  v.  Barnett  Tp.,  100  111.  332 


69  Yonkley  v.  State,  27  Ind.  236 ; 
State  v.  Hauss,  43  Ind.  105. 

to  Pace   v.  People,   50  111.   432; 


U.  S.  v.  Green,  53  Fed.  Rep.  769.  Gates  v.    Delaware   Co.,    12   Iowa, 

es  State  v.  Boeeker,  56  Mo.  17.  405;  State  v.  Fitts,  49  Ala.  402. 


OFFICERS  483 

accepted,  and  a  successor  had  been  appointed,  was 
regarded  as  a  valid  resignation,  and  the  loss  was  held 
to  be  upon  the  officer  resigning.71  In  this  case  the 
resignation  was  accepted  in  ignorance  of  the  fact  that 
it  was  given  while  insane,  but  the  office  is  not  property, 
and  the  holder  had  no  property  right  therein.  On  the 
other  hand,  public  interest  demands  that  only  sane  men 
shall  hold  offices,  and  the  fact  of  such  mental  condi- 
tion would  seem  a  sufficient  justification  for  removal, 
even  though  no  resignation  be  offered. 

Sometimes  the  resignation  may  be  made  provisional 
upon  some  future  act  or  event.  Such  a  resignation  is 
not  effective  until  such  stipulated  act  or  event,  and  the 
acceptance  before  such  event  is  void.72 

Only  an  officer  who  has  been  duly  elected  or  ap- 
pointed, and  who  has  qualified,  may  resign.73  An 
officer  who  has  been  illegally  elected  or  appointed,  and 
who  resigns,  does  not  create  a  vacancy.74  He  cannot 
give  up  that  which  he  never  really  had. 

That  a  resignation  may  be  complete  it  is  ordinarily 
necessary  that  the  resignation  be  formally  accepted, 
but  this  may  be  done  by  a  corporation  making  an  entry 
of  the  same  in  the  public  books,  or  by  appointing  some 
person  to  fill  the  place,  thus  treating  the  office  as 
vacant,75  but  it  has  sometimes  been  held  that  the  resig- 
nation takes  effect  without  any  formal  acceptance.76 

§  351.  Power  of  removal  is  incidental  to  that  of 
appointment.    It  has  been  the  recognized  practice  in 

7i  Blake  v.  U.  S.,  14  Ct.  of  CI.  75  Edwards  v.  U.   S.,   103  U.  S. 

462.  471. 

72  State  v.  Boecker,  56  Mo.  17.  76  Keiter  v.  State,  51  Ohio,  74; 

73  Miller  v.  Supervisors,  25  Cal.  People  v.  Porter,  6  Cal.  26;  State 
93;  In  re  Corliss,  11  E.  I.  638.  v.   Lincoln,   4  Neb.   260;    Bunting 

74  In   re  Corliss,    11   E.   I.  638 ;  v.  Willis,  27  Gratt.  144. 
Queen  v.  Blizard,  L.  E.,  2  Q.  B.  55. 


484  PUBLIC   HEALTH  ADMINISTRATION 

our  system  of  government  to  grant  to  the  appointing 
power  the  right  to  remove  those  whom  it  has  appointed, 
especially  where  the  appointment  is  made  without  stip- 
ulating any  particular  term  of  office.  (§127.)  As 
was  stated  in  an  early  case  before  the  Supreme  Court, 
it  is  "a  sound  and  necessary  rule  to  consider  the  power 
of  removal  as  incident  to  the  power  of  appointment. ' ' 77 
The  arbitrary  power  of  removal  is  limited  to  such 
offices  as  may  have  no  definite  terms  fixed  by  law,78  and 
it  is  not  granted  to  the  appointing  power,  where  the 
officer  appointed  is  to  hold  his  office  at  the  pleasure  of 
some  other  officer  or  board  than  that  which  appoints.79 
In  a  case  in  California  it  was  held  that  the  legislature 
may  not  limit  the  power  of  removal  except  by  fixing 
the  term  of  the  incumbent,  where  the  constitution 
grants  to  the  legislature  the  authority  to  fix  the  term, 
but  stipulates  that  if  the  legislature  has  not  fixed  the 
term,  the  office  shall  be  held  during  the  pleasure  of  the 
appointing  power.80  In  all  these  cases  where  the  office 
is  held  during  the  pleasure  of  the  appointing  power, 
that  pleasure  is  the  absolute  guide,  and  the  power  for 
removal  may  be  used  for  political  or  other  reasons. 
For  offices  having  definite  terms,  either  according  to 
the  constitution  or  the  statutes,  the  power  of  removal 
is  ordinarily  defined  in  the  statutes,  and  the  causes  and 
methods  are  also  defined.  Manifestly,  it  is  essential 
that  there  be  harmony  in  the  administration  of  govern- 
mental business.  The  power  of  removal  is  essentially 
an  executive  function,  and  it  is  to  be  used  to  promote 

77  Ex  parte  Hennen,  13  Peters,  Keenan  v.  Perry,  24  Tex.  253  ; 
230;  Newsome  v.  Cocke,  44  Miss.  State  v.  Chatburn,  63  Iowa,  659; 
352;   People  v.  Commissioners,   73      People  v.  Hill,  7  Cal.  97. 

N.   Y.  437.  "  Carr  v.  State,  111  Ind.  101. 

78  Collins  v.  Tracy,  36  Tex.  546;  so  People  v.  Hill,  7  Cal.  97. 


OFFICERS  485 

harmony  and  efficiency  in  administration.  That  an 
officer  is  removed  from  his  position  need  be  no  reflec- 
tion upon  either  the  officer  removed,  or  upon  the  officer 
making  the  removal.  It  does  not  necessarily  imply 
that  the  officer  removed  has  been  either  dishonest  or 
inefficient.  Bules  or  statutes,  which  limit  the  discharge 
of  officers  during  term  to  malfeasance  may  very 
seriously  interfere  with  good  government  and  efficient 
administration.  For  this  reason  democratic  govern- 
ments are  between  two  dangers.  Where  the  power  of 
appointment  and  removal  is  unlimited  there  is  great 
tendency  to  make  the  government  unstable  in  char- 
acter. With  every  election  there  is  a  danger  that  all 
offices  shall  change,  and  it  will  take  time  for  the  new 
holders  to  become  acquainted  with  their  new  duties. 
Appointments  are  apt  to  be  made  purely  for  political 
reasons,  and  to  build  up  political  machines.  On  the 
other  hand,  under  strict  civil  service  regulations  the 
tendency  is  to  keep  men  of  mediocre  ability  in  office. 
They  may  be  entirely  lacking  in  originality  of  idea, 
with  poorly  developed  judicial  capacity,  and  slow  of 
comprehension,  thus  utterly  unfitted  for  their  posi- 
tions ;  but  so  long  as  they  do  their  work  honestly  it  will 
be  difficult  to  remove  them.  They  are  blocking  prog- 
ress, but  are  secure  in  their  positions.  The  removal  of 
such  obstacles  is  evidently  for  the  common  good,  but 
any  such  attempt  would  be  immediately  decried  as 
political  in  motive,  and  hostile  to  the  spirit  of  civil 
service.  In  a  monarchial  government  it  is  much  easier 
to  build  up  a  permanent  and  efficient  corps  of  adminis- 
trative officers  in  any  department. 

§  352.  Conditions  for  removal  fixed  in  the  Constitu- 
tion.   When  the  term  of  office,  conditions  under  which 


486  PUBLIC   HEALTH  ADMINISTRATION 

an  officer  may  be  removed,  or  method  of  removal  are 
fixed  in  the  constitution,  the  legislature  may  not  enact 
laws  changing  the  constitutional  provisions.81  Thus, 
when  the  constitution  mentions  certain  kinds  of  offence 
for  which  an  officer  may  be  removed,  the  legislature 
may  not  by  statute  name  other  offences  for  which 
removals  shall  be  made,  nor  attempt  to  classify  other 
offences  under  the  constitutional  provisions.82  A  con- 
stitutional or  statutory  fixing  of  the  term  of  office  by 
implication  withholds  from  the  governor  the  power  to 
remove  the  incumbent,83  unless  that  power  be  dis- 
tinctly granted.84  Constitutional  provisions  relative 
to  removal  may  be  self-operative.  Thus,  where  it  is 
provided  that  officers  of  the  courts  may  be  removed  for 
specific  causes,  "upon  the  cause  thereof  being  set  forth 
in  writing,  and  the  finding  of  its  truth  by  a  jury,"  it 
was  held  that  it  was  self  operative,  and  may  be  exe- 
cuted without  legislation.85  "And  where  the  constitu- 
tion provides  for  the  removal  of  an  officer  by  sentence 
of  the  court,  upon  conviction  of  willful  neglect  of  duty, 
or  misdemeanor  in  office,  the  court,  upon  the  conviction 
of  a  person  indicted  for  either  offence,  has  no  discre- 
tion with  respect  to  that  part  of  the  sentence."86 

A  constitutional  provision  empowering  the  governor 
to  remove  any  officer  whom  he  may  appoint  includes 
his  power  to  remove  such  officers  as  he  may  appoint 
by  and  with  the  advice  and  consent  of  the  senate,  and 
even  those  cases  for  which  other  specific  remedies  are 
provided.87     "Where   such   a   provision   specifies    the 

si  Lowe  v.  Commissioners,  3  Met.  84  Field  v.  People,  3  111.  79. 

237;   State  v.  Wiltz,  11  La.  Ann.  85  Trigg  v.  State,  49  Tex.  645. 

439 ;  Eunnels  v.  State,  1  Miss.  146.  se  Throop,  Pub.  Off.  342,  citing 

82  Commiss.  v.  Williams,  79  Ky.  Shattuck  v.  State,  51  Miss.  575. 

42.  87  Wilcox  v.  People,  90  111.  186. 

as  People  v.  Jewett,  6  Cal.  291. 


OFFICERS  487 

causes  for  which  such  removal  may  be  made,  but  does 
not  specify  how  the  power  shall  be  exercised,  the  gover- 
nor may  determine  whether  the  cause  exists  upon  such 
evidence  as  he  may  think  proper.88  It  is  not  necessary 
that  the  governor  should  specify  the  cause.89  It  has, 
however,  sometimes  been  held  that  the  officer  must 
have  notice  of  the  ground  for  removal,  and  a  reason- 
able opportunity  to  be  heard  in  self  defense,  but  the 
judicial  decision  must  rest  with  the  governor.90 

§  353.  Statutory  requirements  for  removal.  In  the 
absence  of  constitutional  limitations  the  legislature 
may  make  such  regulations  relative  to  removal  from 
office  as  it  may  deem  proper.  It  is  a  common  provision 
in  national,  state,  and  municipal  governments  that  the 
power  of  removal  for  cause  shall  be  operable  over  elec- 
tive as  well  as  appointive  officers.  Such  a  provision  is 
indispensable  to  the  proper  exercise  of  the  functions 
of  government,  and  is  clearly  within  sovereign  author- 
ity.91 Such  a  power  of  removal,  under  suitable  restric- 
tions is  much  to  be  preferred  to  the  newer  proposal 
of  recall  by  election,  for  it  is  far  less  likely  to  be 
abused.  Where  removal  is  for  cause  the  proceedings 
are  essentially  judicial  in  their  nature,  and  must  there- 
fore be  before  officers  clothed  with  judicial  authority.92 
This  tribunal  may  be  a  court  of  law,93  or  a  court  of 
impeachments,94  but  this  judicial  power  may  be  con- 
ferred upon  the  governor,  mayor,  or  other  officer,  or 

ss  Wilcox  v.  People,  90  HI.  186.  672;  State  v.  Pritchard  36  N.  J. 

89  Keenan  v.  Perry,  24  Tex.  253.  L.  101 ;  Evans  v.  Populus,  22  La. 

so  Dullam   v.    Willson,   53   Mich.  Ann.  121. 

392.  93  Page   v.    Hardin,    8    B.    Mon. 

9i  People  v.  Whitloek,  92  N.  Y.  648. 

191.  94  State  v.   Pritchard,   36   N.   J. 

92  Dullam   v.    Willson,   53    Mich.  L.  101. 
392;    Page  v.   Hardin,   8  B.   Mon. 


488  PUBLIC   HEALTH  ADMINISTRATION 

board  of  officers.95  In  the  absence  of  power  expressly 
given  by  the  constitution,  the  legislature  may  not, 
either  directly  or  indirectly,  remove  an  officer  in  an- 
other branch  of  government.96 

Where  a  city  officer  has  been  appointed  under  a  gen- 
eral statute,  which  authorized  the  governor,  after 
notice  and  hearing,  to  remove  him,  a  statute  providing 
for  his  removal  by  the  mayor  for  "any  cause  deemed 
sufficient  by  himself,"  is  valid,  and  the  mayor  may 
remove  him  without  notice  or  hearing.97  Such  a  re- 
moval is  ministerial,  and  need  not  comply  with  the 
general  rules  as  to  judicial  proceedings.98  If  the 
removal  be  of  the  nature  of  judicial  proceedings,  it  will 
be  necessary  that  the  records  of  a  board,  before  whom 
the  case  is  tried,  shall  show  fully  the  nature  of  the 
charges,  and  the  result  of  the  determination.  In  other 
words,  the  record  must  show  all  the  facts  necessary  to 
give  the  power  of  removal.99  The  records  must 
further  show  that  the  action  was  legally  taken.  Where 
a  two-thirds  vote  was  necessary  to  remove,  the  vote 
of  a  less  number  will  not  be  valid  for  removal.100 
According  to  the  common  law  no  person  may  sit  as  a 
judge  in  any  case  to  which  he  is  a  party,  or  in  which 
he  is  interested.  A  proceeding  before  a  township 
board  for  the  removal  of  an  officer  of  a  school  district, 
where  one  of  the  board  is  interested  in  the  subject  of 
the  complaint,  violates  the  general  prohibition  of  the 
common  law,  and  is  therefore  void;  and  if  the  pres- 

95  Dullam   v.   Willson,  53   Mich.  98  See    also,    Donahue    v.    Will 

392.  County,  100  111.  94;  Stern  v.  Peo- 

96Cotten   v.    Ellis,    7    Jones,    L.  pie,  102  111.  540. 

545;  Hoke  v.  Henderson,  4  Dev.  1;  99  McGregor    v.    Supervisors,    37 

State  v.  Wiltz,  11  La.  Ann.  439.  Mich.  388. 

97  People  v.  Whitlock,  92  N.  Y.  ioo  People   v.    College,    62    How. 

191.  Pr.  220. 


OFFICERS  489 

ence  of  the  officer  be  necessary  for  a  quorum,  the  action 
is  void.1 

In  the  absence  of  constitutional  restrictions  the  legis- 
lature (or  city  council,  where  the  state  law  does  not 
prohibit),  may  make  such  restrictions  as  it  deems  best 
as  to  cause  for  removal.  A  provision  which  prohibits 
removal  for  political  reasons  only  is  valid.2  If  it 
grants  the  general  power  to  remove  "for  cause,"  this 
cannot  be  construed  as  a  permission  to  remove  at 
pleasure.3  The  removal  can  only  be  for  the  causes 
specified.4 

Since  an  office  is  not  a  contract  in  itself,  and  any 
contract  which  might  be  made  with  reference  to  tenure 
of  office  might  very  likely  be  to  the  disadvantage  of  the 
community,  it  follows  that  any  agreement  made 
between  the  appointing  power  and  the  officer  appointed 
may  at  any  time  be  nullified  by  the  removal  of  the 
appointee.  Thus  an  arrangement  which  was  made 
between  the  mayor  and  a  health  officer  did  not  pro- 
hibit the  removal  of  the  health  officer  from  office.5 

In  the  cities  and  towns  of  Massachusetts  there  is  no 
power  to  remove  public  officers  except  that  which  is 
given  by  the  statutes.  Public  officers,  even  when 
elected  by  the  electors  of  a  town  to  perform  statutory 
duties  which  involve  the  expenditure  of  money  which 
is  raised  by  local  taxation,  are  not  the  agents  of  the 
town.  The  members  of  a  board  of  health  for  a  town 
cannot  be  removed  by  a  vote  of  the  inhabitants  of  a 
town.6    A  health  officer  is  entitled  to  his  pay  until  he 

i  Stockwell  v.   Township   Board,  *  Dubue   v.    Voss,    19   La.    Ann. 

22  Mich.  341.  210. 

2  State   v.   Board,   17   Atl.   Bep.  5  Young  v.  City  of  Ashland,  125 

112.  S.  W.  B.  737. 

a  Mead   v.    Treasurer,    36   Mich.  « Attorney   General   v.   Stratton, 

416.  194  Mass.  51. 


490  PUBLIC   HEALTH   ADMINISTRATION 

shall  have  been  removed,  irrespective  of  whether  or 
not  he  had  properly  discharged  his  duties.7 

Where  the  removal  is  absolute,  within  the  power 
and  pleasure  of  the  superior  officer,  it  is  not  subject  to 
review  by  any  court,  further  than  to  determine  that 
the  removing  officer  had  authority  for  his  action.  If 
that  be  doubted,  it  may  be  tested  by  information  in  the 
nature  of  quo  warranto?  But  if  he  have  the  authority, 
the  action  of  a  governor  in  removing  an  officer  cannot 
be  reviewed  by  quo  warranto.  If  there  be  question  as 
to  irregularity  of  method,  or  improper  conclusion,  the 
case  may  be  brought  into  court  by  certiorari,  which  will 
also  cover  the  question  of  authority.   (§§  379,  380,  383.) 

§354.  What  is  not  removal.  Exclusion  from  office 
because  of  failure  to  qualify  is  not  a  removal  from 
office.9  Discharge  of  an  officer,  either  because  the  work 
was  finished,  or  appropriation  was  exhausted,  is  not 
removal  from  office.  It  is  rather  an  abrogation  of  the 
office.10  Neither  is  the  discharge  of  an  officer  for  the 
purpose  of  reducing  expenses,  or  reducing  the  size  of 
the  force,  a  removal.11  A  transfer  to  an  inferior  class 
is  not  a  removal.12  But  if  the  officer  thus  transferred 
makes  no  protest,  and  signs  the  weekly  pay  roll,  he  is 
thereby  estopped  from  making  future  objection  there- 
to.13 The  fact  that  an  officer  is  discharged  for  the 
purpose  of  cutting  down  the  expense  of  the  service  is 
in  no  way  prevented  because  the  appropriations  are 

7  People    v.    Sipple,    96    N.    Y.  « People    v.    French,    25    Hun, 

Supp.  897.  Ill;  People  v.  Health  Department, 

s  State  v.  Lupton,  64  Mo.  415.  24  Week.  Dig.  197. 

a  Hyde  v.  State,  52  Miss.  665.  12  state  v.  Police  Comms.  40  N. 

10  Phillips   v.    Mayor,   88    N.    Y.  J.  L.  175. 

245;    People   v.  'French,   25   Hun,  is  Eeilly  v.  Mayor,  48  N.  Y.  Sup. 

111.  Ct.  274. 


OFFICERS  491 

sufficient  to  provide  the  pay  for  the  entire  force.14  But 
the  power  given  to  discharge  subordinates  in  order  to 
reduce  the  force,  or  reduce  the  expenses,  does  not  give 
authority  to  remove  an  officer  for  the  purpose  of  creat- 
ing a  vacancy  to  be  filled.15  The  revocation  of  a  com- 
mission illegally  executed  is  not  a  removal,  whether 
the  irregularity  be  due  to  the  ineligibility  of  the  ap- 
pointee, the  absence  of  a  vacancy,  or  other  defect.16 

§  355.  Power  to  remove  does  not  include  the  power 
to  suspend.  Although  in  a  few  cases  it  has  been  held 
that  the  power  to  remove  includes  the  power  to  sus- 
pend,17 the  general  consensus  is  that  unless  the  power 
be  distinctly  granted  the  power  to  suspend  does  not 
exist.18  A  suspension  creates  no  vacancy,  and  gives 
no  power  to  assign  some  person  to  fill  the  position. 
And  a  person  who  assumes  the  responsibilities  of  an 
office,  whose  holder  is  under  suspension,  has  only  minis- 
terial authority.19 

§  356.  Impeachment.  There  is  one  other  form  of 
removal  provided  under  the  Anglican  system  of  gov- 
ernment, which  might  perhaps  be  well  used  more  fre- 
quently than  it  is.  We  refer  to  impeachment.  It  might 
be  well  if  the  statutes  were  more  explicit  as  to  this 
proceeding,  defining  liberally  the  conditions  under 
which  an  officer  may  be  impeached,  and  also  providing 
for  impeachment  under  less  expensive,  and  more  uni- 

i*  People  v.  French,  25  Hun,  111.  Shannon  v.  Portsmouth,  54  N.  H. 

is  State    v.    Sehumaker,    27    La.  183;   State  v.  Police  Commrs.,  16 

Ann.  332.  Mo.  App.  48. 

is  People  v.  Police  Commrs.  102  is  Metsker    v.    Neally,    41    Kas. 

N.  Y.  583 ;  People  v.  Fire  Comms.  122 ;  State  v.  Jersey  City,  25  N.  J. 

114  N.  Y.   67;   Gulick   v.   New,   14  L.  536;  Gregory  v.  New  York,  113 

Ind.   93;    State  v.   Capers,  37  La.  N.  Y.  416. 
Ann.  747.  19  State  v.  Herron,  24  La.  Ann. 

"State  v.   Lingo,   26  Mo.   496;  432. 


492  PUBLIC   HEALTH   ADMINISTRATION 

versal  conditions  than  at  present  for  the  minor  offices. 
At  present,  the  custom  is  for  the  House  of  Representa- 
tives, either  of  state  or  nation,  to  formulate  the 
charges,  which  are  tried  before  the  Senate.  Any  civil 
officer,  generally  speaking,  is  subject  to  impeachment; 
but  much  of  the  time  the  legislative  body  is  not  in 
session,  and  minor  officers,  shielded  by  their  superiors, 
are  permitted  to  mismanage,  and  pervert  their  posi- 
tions with  absolute  impunity.  The  difficulty  and  ex- 
pense involved  in  impeachment  restricts  its  use  to 
flagrant  cases.  The  punishment  inflicted  is  limited  to 
removal  from,  and  disqualification  for  holding  office. 
With  the  exception  of  impeachment  and  certain  possi- 
bilities, like  that  of  quo  warranto,  which  are  not  gen- 
erally known,  all  the  power  for  removal  of  incompetent, 
or  dishonest  officials,  so  long  as  they  abstain  from  com- 
mitting statutory  crime,  is  in  the  hands  of  a  few 
superior  officers.  As  a  consequence,  it  is  possible  for 
an  entire  administration  to  be  honeycombed  with  a 
form  of  corruption.  Because  statutes  are  not  explicit 
in  directions,  public  officers  are  slow  to  take  up  the 
prosecutions  of  fellow  officers.  There  should  be  some 
provision  for  the  trial  of  charges  under  conditions  re- 
sembling impeachment  before  certain  courts  for  minor 
officers,  upon  the  petition  of  private  citizens,  under 
clearly  defined  conditions.  Such  removal  should  always 
be  judicial  in  method,  rather  than  a  yielding  to  the 
unreasoning  whim  of  the  populace.  An  officer  should 
be  removed  for  willful  neglect  of  duty,  or  for  perver- 
sion of  authority  to  the  public  harm,  or  for  malfeasance 
in  office;  but  an  officer  having  the  confidence  of  his 
superior,  should  not  be  punishable  for  the  performance 
of  his  duty  according  to  his  judgment,  nor  for  adher- 


OFFICERS  493 

ence  to  duty  when  such  adherence  may  make  him 
unpopular  for  the  time  being.  According  to  constitu- 
tional provisions,  Congress,  or  the  legislative  branches 
of  the  individual  states,  may  impeach  officers,  but  they 
do  not  specify  when  the  power  shall  be  exercised.  The 
legislative  body  is  therefore  the  sole  judge  as  to  the 
time  when  the  power  shall  be  exercised  as  well  as  rela- 
tive to  the  grounds  for  impeachment,  free  from  control 
by  the  executive  or  the  courts.  Hence,  the  impeach- 
ment of  the  governor  by  the  general  assembly  while 
in  extraordinary  session  is  valid,  although  the  consti- 
tution provides  that  no  subject  shall  be  acted  upon  in 
such  a  session  except  such  as  the  governor  recom- 
mends, and  the  governor  had  not  recommended  his 
own  impeachment.  The  provision  of  the  constitution 
restricting  action  in  extraordinary  session  clearly 
refers  to  legislative  efforts.  Impeachment  is  a  judicial 
procedure,  and  must  be  free  from  the  control,  either 
active  or  negative,  of  the  other  branches  of  govern- 
ment.20 

20  People  ex  rel.  Eobin  v.  Hayes, 
143  N.  Y.  Supp.  325. 


CHAPTER  XI 


LIABILITIES 


§  357.  State  can  not  be  sued. 

§  358.  Duplex  character  of  the  mu- 
nicipality. 

§  359.  Liability  of  officers  judged 
by  duties. 

§  360.  Officers  are  such  only  when 
complying   with   the   law. 

§  361.  Unconstitutional  law  no  de- 
fense. 

§  362.  Discretionary  or  ministerial 
authority. 

§  363.  Officers  with  discretion  not 
ordinarily  responsible. 

§  364.  Cases  showing  liability  or 
non-liability  of  quasi- ju- 
dicial officers. 

§  365.  Officer  is  liable  if  he  exceed 
his  jurisdiction. 

§  366.  Officer  is  liable  for  acts  not 
covered  by  duty. 


§  367.  Superior  officer  not  liable 
for  torts  of  subordinates. 

§  368.  When  superior  officer  is 
liable  for  subordinate. 

§  369.  Liability  as  to  contracts. 

§  370.  Officer  not  ordinarily  liable 
on  implied  authority. 

§  371.  When  officer  is  liable  on 
contract. 

§  372.  Application  to  health  of- 
ficers. 

§  373.  Liability  of  employees. 

§  374.  Liability  of  city  for  per- 
formance of  public  duties. 

§  375.  Liability  for  municipal 
duties. 

§  376.  Municipal  contracts,  liabil- 
ity on. 

§  377.  Respondeat  superior. 


§  357.  State  cannot  be  sued.  It  is  axiomatic  that  the 
State  cannot  be  sued,  except  with  its  own  consent.  In 
proportion  as  the  body  represents  the  sovereign  power 
it  must  be  free  from  this  danger.  As  we  have  shown 
the  government  is  conducted  by  three  branches  which 
are  coordinate.  These  branches  together  represent 
the  State.  It  would  be  impossible,  therefore,  for  the 
State  to  be  attacked  before  a  part  of  itself,  unless  it 
granted  the  permission.    Further,  because  the  branches 

494 


LIABILITIES  495 

are  coordinate,  neither  one  has  authority  over  the 
others  in  actual  operation.  While  the  courts  may 
scrutinize  complaints  that  the  legislative  or  executive 
branches  have  exceeded  their  authority,  on  the  other 
hand,  they  will  not  interfere  with  the  legislature,  nor 
the  executive,  in  their  own  proper  work. 

In  the  discharge  of  governmental  duties  the  nation, 
the  state,  the  county,  and  smaller  divisions  of  the  state 
are  all  protected  from  suit  for  damages  which  some 
portion  of  the  community  may  have  sustained.  Such 
injury  must  occur  occasionally.  The  common  good  may 
demand  something  which  works  against  some  private 
interest;  but  to  protect  that  private  interest  it  would 
be  necessary  that  many  be  harmed. 

§  358.  Duplex  character  of  the  municipality.  Most 
municipalities  have  been  incorporated  at  the  request 
of  their  own  citizens.  As  a  portion  of  the  state,  and 
doing  the  governmental  work  of  the  state  within  their 
borders  they  share  with  the  state  freedom  from  court 
action.  But  as  corporations  they  come  into  commer- 
cial competition  with  individuals  and  other  corpora- 
tions. In  that  character  the  city  must  be  under  the 
same  rules  and  laws  as  those  which  regulate  the  con- 
duct of  the  private  persons  or  corporations.  In  other 
words,  cities  are  liable  to  individual  citizens  for  any 
harm  which  may  come  from  the  corporate  deeds  or  mis- 
deeds, and  for  their  negligences,  just  as  are  ordinary 
persons. 

§  359.  Liability  of  officers  judged  by  duties.  Officers 
may  be  considered  the  personification  of  government. 
It  is  impossible  to  conceive  of  government  except 
through  the  instrumentality  of  officers.  Since  the 
officer  is  a  portion  of  the  government,  he  partakes  with 


496  PUBLIC   HEALTH   ADMINISTRATION 

the  government  its  immunity  from  prosecution.  So 
long  as  a  state  officer  strictly  adheres  to  the  law  in  the 
execution  of  his  duties,  the  state  will  protect  him  from 
attack  in  transacting  its  business.  On  the  other  hand, 
the  purely  municipal  officer,  one  looking  after  some 
corporate  interest  rather  than  a  governmental  duty, 
is  not  shielded  by  the  state  any  more  than  he  would  be 
in  working  for  a  private  corporation.  An  officer  whose 
duties  are  partially  governmental  and  partially  cor- 
porate will  be  shielded  or  exposed  in  proportion  as  the 
particular  matter  under  consideration  may  be  govern- 
mental or  corporate. 

§360.  Officers  are  such  only  when  complying  with 
the  law.  "All  officers  of  the  government,  from  the 
highest  to  the  lowest  are  creatures  of  the  law  and  are 
bound  to  obey  it. "  *  The  law  provides  offices  and  pre- 
scribes the  duties  of  the  officers.  It  further  directs 
how  certain  work  shall  be  accomplished.  The  author- 
ity for  the  act  must  therefore  be  found  in  the  law.  If 
the  person  do  that  which  the  law  does  not  provide,  he 
is  not  acting  with  the  authority  of  the  law,  and  in  so 
far  he  is  not  an  officer,  nor  the  representative  of  the 
state  or  city.  (§  270.)  He  is  simply  a  private  individ- 
ual, and  as  such  is  liable  for  any  harm  which  may 
result.  "  Action  in  accordance  with  legal  authority  is 
legal,  and  the  official  so  acting  will  always  be  justified, 
and  action  without  warrant  of  law  is  illegal,  and  the 
official  so  acting  will  always  be  considered  a  private 
wrong  doer." 2  "The  criminal  law  regards  as  a  crime 
almost  every  act  of  an  officer,  which,  if  committed  by 

i  U.  S.  v.  Lee,  106  U.  S.  196,  per  2  Wyman,  Ad.  Law.  3. 

Miller,  J. 


LIABILITIES  497 

an  individual,  would  be  a  crime, ' ' 3  and  the  law  of  the 
United  States  declares,  "any  act  or  omission  in  dis- 
obedience of  public  duty,  as  by  one  who  has  accepted 
office,  when  of  public  concern"  to  be  a  crime.4 

"Before  the  law  of  the  land,  therefore,  the  public 
officer  stands  as  a  private  person;  and  the  result  is 
startling;  every  act  by  every  public  officer  may  be 
subject  of  suit  against  the  officer  as  an  ordinary  per- 
son. More  than  that,  unless  the  officer  can  show  an 
exact  legal  justification  for  the  precise  act  which  he 
has  done,  he  has  done  nothing  more  or  less  than  a  legal 
wrong  by  his  interference,  for  which  he  must  answer 
just  as  any  private  wrong  doer  must  answer  for  his 
wrongs.  In  this  view  every  action  of  administration  is 
subject  to  the  law  of  the  land,  in  that  some  officer  of 
the  administration  must  answer  in  his  own  person  if 
anything  be  done  by  it  without  authority  of  positive 
law."5 

It  will  be  noted  from  the  foregoing  that  the  officer 
must  do  nothing  which  the  law  does  not  direct,  but 
that  he  must  do  all  that  the  law  directs;  in  other  words, 
he  must  answer  for  his  sins  of  omission,  as  well  as  for 
those  of  commission. 

§361.  Unconstitutional  law  no  defense.  A  statute 
is  law  only  when  it  is  passed  in  conformity  with  the 
Constitution.  The  fact  that  the  legislature  has 
exceeded  its  authority,  and  has  placed  upon  the  books 
a  statute  which  is  unconstitutional,  or  that  a  city  has 
passed  an  ordinance  which  is  contrary  to,  or  exceeds 

3  Goodnow,    Priii.    of    Ad.    Law,  *  Bishop,  Crim.  Law,  I,  459. 

298,  citing  Bishop,  Crim.  Law,  II,  s  Wyman,  Ad.  Law,  7. 

982;  McKenzie  v.  Boyal  Dairy,  35 
Wash.  390;  Aaron  v.  Broiles,  64 
Tex.  316. 


498  PUBLIC   HEALTH   ADMINISTRATION 

its  powers,  is  no  justification  for  an  executive  officer 
who  thus  commits  an  injury.6  It  matters  not  that  the 
act  may  be  performed  in  good  faith,  with  good  inten- 
tions, and  with  scientific  accuracy  of  knowledge,  if 
the  act  is  not  within  the  provisions  of  true  law,  it  is 
a  private  wrong,  and  the  doer  is  liable.  It  is  therefore 
of  the  greatest  importance  for  the  executive  officer  to 
be  thoroughly  posted  as  to  his  legal  rights  and  duties; 
and  because  the  powers  of  a  municipality  are  less  than 
those  of  the  state,  and  liability  may  exist  against  the 
city  where  the  state  would  be  protected  by  its  sover- 
eignty, it  is  doubly  important  that  the  officer  who 
holds  his  position  under  a  city  government  shall  be 
especially  careful. 

§362.  Discretionary  or  ministerial  authority.  In 
determining  the  personal  liability  of  an  officer,  whether 
he  be  in  the  service  of  the  nation,  state,  or  city,  and  in 
deciding  as  to  the  liability  of  a  city  if  he  be  upon 
the  municipal  pay  roll,  it  is  important  to  distinguish 
between  the  quasi- judicial  services  which  imply  the 
use  of  reason,  and  those  duties  which  are  purely 
ministerial.  If  his  authority  is  discretionary  in 
nature,  the  officer  may  do  anything  which  is  within  the 
bounds  of  that  discretion,  and  so  long  as  it  is  the  result 
of  a  judicial  determination,  and  the  use  of  his  reason 
in  making  a  decision,  the  act  will  be  considered  as 
within  the  law.  But  if  his  duties  be  ministerial,  he 
must  do  that  which  the  law  specifies,  no  more,  and  no 
less.    If  he  fail  in  the  strict  compliance  with  the  law, 

e  Fisher  v.   McGirr,   1  Gray,   1;  196;  Cunningham  v.  Macon  E.  K. 

Ely  v.  Thompson,  3  A.  K.  Marsh,  Co.,  109  U.  S.  446;   Poindexter  v. 

70;  Osborn  v.  Bank,  9  Wheat.  783;  Greenhow,  114  U.  S.  270;  Sumner 

Norton  v.  Shelby  County,   118  U.  v.   Beeler,  50  Ind.  341;   Board  v. 

S.   442;   U.   S.  v.  Lee,   106  U.   S.  MeComb,  92  U.  S.  531. 


LIABILITIES  499 

his  act  will  be  deemed  void,  and  illegal.7  It  frequently 
happens  that  an  executive  officer  is  vested  with  minis- 
terial duties,  commingled  with  discretionary  powers. 
In  such  cases  in  so  far  as  the  authority  is  vested  with 
discretion  he  will  be  permitted  to  do  anything  within 
that  discretion.8 

§  363.  Officers  with  discretion  not  ordinarily  respon- 
sible. "It  is  a  general  rule  that  judicial  officers  acting 
within  their  jurisdiction  cannot  be  held  personally 
responsible  for  the  improper,  or  erroneous  perform- 
ance of  their  duties.  This  rule  embraces  all  officers 
exercising  discretionary  powers. ' ' 9  This  rule  refers 
simply  to  errors  in  judgment,  and  by  no  means  applies 
to  a  case  in  which  the  officer  has  been  actuated  by  cor- 
rupt or  malicious  motives,  nor  when  he  has  practiced 
fraud  upon  the  injured  party.10  Public  officers  are  also 
liable  in  a  criminal  action  for  negligence  in  the  per- 
formance of  their  duty,  and  this  is  particularly  true  of 
police  officers; 21  and  it  must  be  remembered  that  essen- 
tially the  health  administration  is  a  portion  of  the 
police.  Although  officers  with  discretionary  duties  are 
thus  protected,  it  is  the  general  rule  that  in  the  per- 
formance of  merely  ministerial  duties  an  officer  is 
liable  to  third  parties  for  any  injury  suffered  as  the 

7Wyman,  Ad.  Law,  83.  io  McTeer    v.    Lebow,    85   Tenn. 

s  Wall    v.    Trumbull,    16    Mich.  121;  Wilkes  v.  Dinesman,  7  How. 

228;     Weaver     v.     Devendorf,     3  89;  Hoggatt  v.  Bigley,  6  Humph. 

Denio,  117.  236;   Elmore  v.  Overton,  104  Ind. 

9  Ingersoll,  Pub.  Corp.  90 ;  Moss  548 ;  City  of  Oakland  v.  Carpenter, 

v.   Cummings,   44  Mich.   359;   Jor-  13   Cal.   540;    Roper  v.  McWorter, 

dan    v.    Hanson,    49    N.    H.    199;  77  Va.  214;   Whidden  v.  Cheever, 

Lange  v.  Benedict,  73  N.  Y.  12 ;  69  N.  H.  142,  44  Atl.  902 ;  Seavey 

Mostyn     v.     Fabrigas,     1     Smith,  v.  Preble,  64  Me.   120. 

Lead.  Cas.  1027;  People  v.  Bender,  «  People  v.  Diamond,  76  N.  Y. 

36  Mich.  195;  Wamesit  Power  Co.  Supp.    57;    People    v.    Foody,    79 

v.  Allen,  120  Mass.  352.  N.   Y.   Supp.   240. 


500  PUBLIC   HEALTH   ADMINISTRATION 

result  of  nonfeasance,  misfeasance,  or  malfeasance; 12 
and  this  rule  applies  not  only  to  those  officers  whose 
duties  are  purely  ministerial,  but  also  to  the  perform- 
ance of  ministerial  duties  by  those  who  may  also  have 
discretionary  duties.13  But  he  will  still  be  protected 
in  his  discretionary  duties.14 

§364.  Cases  showing  liability,  or  nonliability  of 
quasi- judicial  officers.  The  public  health  service  is  an 
important  portion  of  the  police.  Its  officers  must  have 
a  degree  of  latitude  in  their  operations.  Their  duties 
may  be  mandatory,  and  to  a  degree  ministerial;  but 
essentially  their  duties  are  quasi- judicial,  and  govern- 
mental. In  determining  the  sources  of  disease,  in  hand- 
ling epidemics,  and  in  deciding  upon  the  existence  or 
nonexistence  of  nuisances  much  must  be  left  to  their 
discretion.  In  such  cases,  so  long  as  they  are  within 
their  discretion,  health  officials  are  not  liable  to  parties 
who  may  sustain  injury  as  the  result  of  the  action 
taken.15  Inspectors  are  not  liable  for  errors  committed 
in  determining  the  fitness  or  quality  of  provisions;16 
but  such  officers  are  liable  for  failure  to  perform  their 
ministerial  duties.17  However,  "Where  a  public  offi- 
cer other  than  a  judicial  one,  does  an  act  directly  inva- 
sive of  the  private  rights  of  others,  and  there  is  other- 

12  Amy  v.  Supervisors,  11  Wall.  228;  Jenkins  v.  Waldron,  11  Johns, 

136;    Nowell  v.   Wright,   3   Allen,  114;    Henderson  v.  Smith,   26  W 

166;  Hover  v.  Barkhoof,  44  N.  Y.  Va.  829. 

113 ;    Allen   v.   Commonwealth,   83  is  Baymond    v.    Fish,    51    Conn 

Va.  94.  80;   City  of  Salem  v.  Eastern  E 

isEobinson    v.    Bohr,    73    Wis.  E.  Co.,  98  Mass.  431. 

436 ;  Bounds  v.  Mumf  ord,  2  E.  I.  is  Fath  v.  Koeppel,  72  Wis.  289 

154;  Grider  v.  Tally,  77  Ala.  422;  Seaman  v.  Patten,  2  Caines  (N.  Y 

People    v.    Bush,    40    Cal.     344;  312). 

Thompson  v.    Holt,   52   Ala.   491;  "Hayes  v.  Porter,  22  Me.  371 

People  v.  Provines,  34  Cal.  520.  Niekerson    v.    Thompson,    33    Me 

i4  Wall    v.    Trumbull,    16   Mich.  433. 


LIABILITIES  501 

wise  no  remedy  for  the  injury,  such  officer  is  personally 
liable  without  proof  of  malice  and  an  intent  to 
injure. ' ' 1S  Whereas  the  McCord  case  was  one  relative 
to  highway  officers,  it  is  practically  on  all  fours  with 
health  administration.  In  that  case  the  learned  judge 
was  influenced  in  his  decision  by  the  fact  that  action 
could  not  be  brought  against  the  road  district,  the 
township,  nor  the  county.  In  health  administration 
action  could  not  be  brought  against  an  incorporated 
township,  county,  nor  the  state ;  and  it  is  very  doubtful 
if  action  could  be  sustained  against  a  municipality 
for  the  reason  that  health  administration  is  strictly 
governmental  in  its  character,  rather  than  corporate. 
Clearly,  the  fact  that  a  man  holds  an  office  should  not 
shield  him  in  sins  of  omission  or  of  commission.  If  an 
officer  of  health  be  manifestly  careless  in  the  perform- 
ance of  his  duty  he  should  be  held  personally  liable, 
for  his  position  presupposes  due  care  in  execution,  and 
if  he  fail  to  use  such  care  to  that  extent  he  is  not  an 
officer.19  (§360.)  So,  too,  when  because  of  personal 
benefit  to  himself,  a  health  officer  neglected  to  prevent 
the  sale  of  disease-producing  milk,  it  was  held  that  he 
was  personally  liable  for  the  harm  resulting.20  Such 
omission  in  the  performance  of  duty  was  evidently  the 
result  of  corruption;  and  it  did  not  greatly  matter 
whether  the  motive  originate  in  the  receipt  of  a  bribe 
from  the  owner  of  the  dairy,  or  in  his  profits  as  a  part- 
ner in  the  dairy  business,  though  as  a  partial  owner  of 
the  business  such  an  officer  would  be  doubly  liable. 
When  the  president  of  a  board  of  health  does  no 

18  Dillon,  Ch.  J.,   in   McCord  v.  20  McKenzie  v.  Eoyal  Dairy,  35 
High,  24  Iowa,  336,  350.                       Wash.  390. 

19  Aaron  v.  Broiles,  64  Tex.  316. 


502  PUBLIC   HEALTH  ADMINISTRATION 

more  than  to  see  that  the  requirements  of  the  board 
are  carried  out  with  regard  to  quarantine  he  is  not 
personally  liable.21  So  also,  a  health  officer  acting 
under  statutory  provisions  vesting  him  with  discre- 
tionary powers  as  to  the  removal  of  patients,  and  the 
quarantine  of  exposed  persons,  is  not  liable  in  damages 
to  the  owner  of  a  house  for  refusing  to  remove  a  tenant 
with  small-pox,  who  lived  in  a  part  of  the  house,  to  the 
pest  house,  nor  for  quarantining  the  owner  in  his 
house.  There  being  no  evidence  of  bad  faith,  or  impu- 
tation thereof,  it  would  be  assumed  that,  in  the  opinion 
of  the  health  officer,  the  life  of  the  patient  would  have 
been  endangered  by  his  removal.22  As  to  the  quaran- 
tining of  the  owner  there  might  be  some  possible 
doubt.  According  to  present  information,  if  he  had 
been  recently  vaccinated,  or  if  he  had  ever  had  small- 
pox, it  is  difficult  to  see  how  he  would  be  a  source  of 
danger  in  the  community,  unless  possibly  through 
some  business  relationship,  as  in  the  conduct  of  a  milk 
dairy.  Vaccination  is  a  reasonably  sure  defense 
against  small-pox,  and  it  is  exceedingly  doubtful  if 
the  disease  may  be  communicated  by  a  third  person. 
Although  health  officers  are  not  ordinarily  liable  for 
damages  caused  in  the  performance  of  their  duty  in 
the  enforcement  of  quarantine,23  city  officers  enforcing 
an  ordinance  to  prevent  the  spread  of  contagious 
disease  act  at  their  peril,  and  are  liable  for  damages 
caused  if  the  ordinance  is  void.  A  city  is  not  liable 
for  damages  sustained  by  the  enforcement  of  a  void 
ordinance.24    (§  374.)    Neither  are  health  officers  liable 

21  Kirby  v.  Harker,   121  N.  W.  23  Forbes    v.    Escambia    County 

1071.  Board  of  Health,  28  Fla.  26. 

22Whidden  v.   Cheever,   44   Atl.  2*  Verdon    v.    Bowman     (Neb.), 

902,  69  N.  H.  142.  97  N.  W.  229. 


LIABILITIES  §03 

for  errors  in  diagnosis  where  they  are  acting  in  good 
faith.25 

§  365.  Officer  is  liable  if  he  exceed  his  jurisdiction. 
Every  officer  has  his  proper  jurisdiction,  as  to  terri- 
tory, as  to  persons,  and  as  to  subject  matter.  In  the 
course  of  his  lawful  duty  he  may  pass  beyond  the 
bounds  of  that  jurisdiction.  If  he  do  so,  and  injury  to 
a  third  person  result,  he  will  be  held  liable.26  Judge 
Cooley  has  defined  jurisdiction  as  the  authority  of  law 
to  act  officially  in  the  matter  in  hand.27  That  the  offi- 
cer may  have  complete  immunity  from  the  results  of 
his  errors,  therefore,  he  must  have  jurisdiction  over 
the  person  or  thing,  and  the  subject  matter  involved  in 
the  question  to  be  determined  by  his  judgment.28  But 
even  if  he  exceed  the  limits  of  his  jurisdiction  he  may 
not  always  be  liable.  If  there  be  a  mistake  of  fact 
which  has  led  him  to  go  outside  of  his  jurisdiction,  if 
it  be  through  the  ignorance  of  certain  facts  or  circum- 
stances applicable  to  the  particular  matter  before  him, 
which  he  had  neither  knowledge  of,  nor  means  of 
knowing,  that  error  of  fact  due  to  such  ignorance,  will 
be  an  excuse.29  But  simple  ignorance,  where  the 
means  of  information  were  at  hand,  will  be  no  excuse. 

It  is  the  duty  of  certain  officers  to  lay  out,  construct, 
and  keep  in  repair,  public  roads,  bridges,  and  water 

25  Valentine  v.  Englewood,  76  son,  61  N.  Y.  420 ;  Brown  v.  Mur- 
N.  J.  L.  509;  Beeks  v.  Dickinson       dock,  140  Mass.  314. 

Co.,  131  Iowa,  244.  27  Cooley  on  Torts,  417. 

26  Freeman  v.  Kenney,  15  Pick.  28  Lange  v.  Benedict,  73  N.  Y. 
44;  Gage  v.  Currier,  4  Pick.  399;       12. 

Suydam  v.  Keys,  13  Johns.  444 ;  29  Clarke  v.  May,  2  Gray,  410 ; 
Mygatt  v.  Washburn,  15  N.  Y.  Vaughn  v.  Congdon,  56  Vt.  Ill; 
316;  Hays  v.  Steamship  Co.,  17  Pike  v.  Carter,  3  Bing.  78;  Low- 
How.  596;  Williams  v.  Weaver,  75  ther  v.  Earl  of  Kadnor,  8  East, 
N.  Y.  30;   Goetcheus  v.   Matthew-  113. 


504  PUBLIC   HEALTH   ADMINISTRATION 

ways.  "The  discretion  which  protects  such  an  officer 
as  the  road  supervisor  stops  at  the  boundary  where  the 
absolute  rights  of  property  begin. ' ' 30  The  importance 
of  the  knowledge  of  the  legal  rights  in  such  a  matter 
is  well  set  forth  by  Mr.  Justice  Cooley  in  a  case  where 
the  highway  officers  had  cut  private  drains.31  "High- 
way authorities  have  no  more  right  than  private  per- 
sons to  cut  drains,  the  necessary  result  of  which  wil] 
be  to  flood  the  lands  of  individuals.  This  was  shown 
in  Ashley  v.  Port  Huron,  where  many  authorities  are 
referred  to.32  The  highway  officer,  no  doubt,  has  a  dis- 
cretion in  deciding  how  and  where  he  will  expend 
highway  labor;  but  it  is  a  discretion  limited  by  the 
rights  of  individuals,  and  when  he  invades  those  rights 
he  becomes  liable.33  And  when  he  is  liable  for  a  law- 
less act,  all  his  assistants  are  liable  with  him  for  the 
consequent  injury.34  This  rule  sometimes,  when  the 
agent  has  acted  in  good  faith,  and  without  knowledge 
of  the  want  of  legal  authority,  may  seem  to  operate 
oppressively,  but  it  is  a  necessary  and  very  just  rule 
notwithstanding,  and  full  protection  of  the  citizen  in 
his  legal  rights  would  be  impossible  without  it. 
Absence  of  bad  faith  can  never  excuse  a  trespass, 
though  the  existence  of  bad  faith  may  sometimes 
aggravate  it.  Every  one  must  be  sure  of  his  legal 
right  when  he  invades  the  possession  of  another. ' '  By 
way  of  contrast  we  may  mention  an  English  case,  in 
which,  though  private  grounds  were  entered  the  action 

so  Dillon,   Ch.    J.    in   MeCord  v.  Brown  v.  Howard,  14  Johns.  119 ; 

High,  24  Iowa,  336.  Coventry  v.  Barton,  17  Johns.  142; 

si  Cubit  v.  O  'Dett,  51  Mich.  347.  Fielder     v.     Maxwell,     2     Blatch. 

3235  Mich.  296.  (U.  S.  C.  C.)  552;  Tracy  v.  Swart  - 

33  Tearney  v.  Smith,  86  HI.  391.  wout,  10  Pet.  80 ;   Smith  v.  Colby, 

34  Story   on    Agency,    311,    312;  67  Me.  169. 


LIABILITIES  505 

was  within  the  sovereign  power  of  the  state.  Six 
Lords  Commissioners  of  the  admiralty  had  entered 
the  property  of  one  Raleigh  to  survey  for  a  naval  col- 
lege, preliminary  to  compulsory  purchase.35  In  this 
decision  the  judge  said:  "In  other  words,  to  sum  up 
shortly  the  result  of  the  above  by  the  use  of  convenient 
phraseology,  the  plaintiffs  in  respect  of  the  matters 
they  are  now  complaining  of  could  sue  any  of  the 
defendants  individually  for  trespass  committed  or 
threatened;  but  they  could  not  sue  the  defendants  offi- 
cially or  as  an  official  body. ' ' 

§  366.  Officer  is  liable  for  acts  not  covered  by  duty. 
The  foregoing  cases  are  illustrative  of  questions  which 
directly  interest  health  officials.  It  is  frequently  neces- 
sary for  the  officer  of  health  to  invade  private  prop- 
erty. Whatever  he  may  do  there  in  the  line  of  his 
official  duty  would  be  considered  as  done  by  the  state, 
and  the  officer  would  therefore  be  held  not  liable  for 
any  damage  which  might  accrue.  But  if  taking 
advantage  of  his  official  position,  while  being  thus 
within  private  property,  he  should  do  any  act  not  in 
the  necessary  line  of  his  duty,  and  harm  result  there- 
from, in  that  extra  official  act  he  would  not  be  the  rep- 
resentative of  the  state,  but  a  private  trespasser,  and  a 
wrong  doer,  and  as  such  would  be  held  liable. 

To  give  another  view  of  the  same  problem  an  illus- 
tration might  be  taken  from  the  writer's  personal 
experience.  Several  members  of  a  family  were  taken 
seriously  ill  immediately  after  their  noonday  meal.  It 
was  found  that  only  one  member  of  the  household  had 
escaped,  and  that  he  was  the  only  one  who  had  not 
drunk  tea;  those  who  drank  the  tea  most  freely  were 

35  Ealeigh  v.  Goschen,  1  Ch.  73. 


506  PUBLIC   HEALTH  ADMINISTRATION 

those  most  severely  ill;  there  was  no  other  peculiar  cir- 
cumstance which  seemed  to  be  associated  with  the 
cases.  It  was  found  that  this  was  the  first  brew  from  a 
new  package  of  tea;  and  inquiry  at  the  store  developed 
the  fact  that  only  a  few  pounds  had  been  sold  from 
that  newly  received  shipment,  which  was  the  first  of 
the  kind  received  in  the  city.  The  health  officer  was 
perfectly  justified  in  his  official  duty  in  stopping  the 
sale  of  the  tea  until  he  could  make  further  investiga- 
tion. He  suspected  that  some  deleterious  chemical  had 
been  used  in  the  preparation  of  the  tea,  but  after  full 
investigation  he  failed  to  find  evidence  of  harmfulness 
in  the  particular  package  which  had  been  suspected. 
Had  he  published  his  suspicions,  and  thereby  injured 
the  later  sale  of  that  brand,  the  officer  would  have 
exceeded  his  authority,  unless  by  no  other  means  could 
the  sale  have  been  temporarily  checked,  pending  the 
investigation.  Again,  having  decided  in  the  first  place 
that  the  tea  was  at  fault,  had  he  simply  told  the  family 
his  suspicions,  but  made  no  further  investigation,  and 
had  the  family  then  spread  the  report,  thus  injuring  the 
sale,  it  is  quite  likely  that  the  officer  would  have  been 
held  liable.  Having  given  voice  to  his  suspicions  it 
was  his  duty  to  make  further  investigation.  That 
duty  was  mandatory  upon  him,  though  it  might  not  be 
found  in  the  written  law  of  the  state  or  city.  Under 
the  circumstances,  had  he  failed  to  make  the  further 
investigation,  he  would  have  gone  without  the  bounds 
of  his  authority  as  truly  as  though  he  had  invaded  the 
territorial  jurisdiction  of  a  neighbor. 

§  367.  Superior  officer  not  liable  for  torts  of  subor- 
dinates. The  superior  officer  is  not  liable  for  wrongs 
committed  by,  or  negligences  of,  his  subordinates.36 

36  Robertson  v.  Sichel,  127  U.  S.       507,  a  case  involving  the  loss  of  a 


LIABILITIES  507 

§  368.  When  superior  officer  is  liable  for  subordinate. 

When  the  fault  of  the  subordinate,  either  officer  or 
employee,  is  due  to  the  connivance  or  negligence  of  the 
superior,  the  superior  will  be  held  responsible,  and 
liable  for  the  torts  of  his  subordinate,  though  the  sub- 
ordinate may  also  be  held.  If  the  superior  employs 
incompetent,  or  improper  aids,  or  so  carelessly  con- 
ducts his  office  as  to  open  the  way  for  defaults  and  mis- 
deeds, or  if  he  has  authorized  or  cooperated  in  the 
wrong,  the  superior  must  be  held  liable.37  A  minis- 
terial officer  is  under  obligation  to  perform  certain 
duties  in  the  specified  way.  His  responsibility  cannot 
be  delegated  to  another.  If  he  have  deputies,  either 
officers  or  employees,  it  is  his  duty  to  see  that  they 
perform  the  work  in  the  specified  manner.  If,  then, 
the  deputy  under  the  seeming  compliance  with  law, 
and  under  color  of  authority,  be  guilty  of  misfeasance, 
malfeasance,  or  nonfeasance,  the  superior  officer  will 
also  be  held  liable.3S 

"No  case  has  been  discovered  in  which  an  action  for 
damages  has  been  sought  to  be  maintained  against  the 
governor  for  his  neglect  or  refusal  to  perform  such  an 
act  (ministerial),  but  if  he  is  amenable  to  mandamus, 
no  satisfactory  reason  is  apparant  why  he  may  not  be 
compelled  to  respond  in  damages."39  Because  the 
executive  is  independent  of  the  judicial  branch  of  gov- 
ernment, no  legal  attempt  to  control  the  discretion  of 

trunk  while  in  the  care  of  a  cus-  3§  VanSchaick  v.  Sigel,  60  How. 

toms  officer;  Dunlop  v.  Munroe,  7  (N.   Y.)    Pr.    122;    Draper   v.   Ar- 

Craneh,  242,  a  letter  lost  by  ear-  nold,    12    Mass.    449;    Hazard    v. 

rier.  Israel,     1     Binn.     240;     State     v. 

37  Bishop  v.  Williamson,  11  Me.  Moore,     19  Mo.  369;  Flanagan  v. 

495;  Dunlop  v.  Munroe,  7  Cranch,  Hoyt,  36  Vt.  565;  Prosser  v.  Coots, 

242;  Ford  v.  Parker,  4  Ohio,  576;  50   Mich.   262. 

Ely  v.  Parsons,  55  Conn.  83.  so  Mechem,  Pub.  Off.   610. 


508  PUBLIC   HEALTH   ADMINISTRATION 

the  governor  would  be  entertained  by  the  court. 
While,  therefore,  the  higher  officers  of  government 
might  be  technically  liable  for  misfeasance,  malfeas- 
ance, or  nonfeasance,  the  responsibility  of  such  high 
officers  would  need  to  be  very  apparent  before  the 
courts  would  so  determine. 

§369.  Liability  as  to  contracts.  The  only  way  in 
which  a  governmental  body  may  deal  with  individuals 
is  through  its  officers.  An  officer  may,  in  the  course 
of  his  official  duty,  have  occasion  to  make  contracts 
for  the  government  which  he  represents.  For  making 
such  contracts  he  must  have  a  clear  authorization.  As 
a  general  proposition  this  authority,  in  the  case  of  an 
executive  officer,  must  be  found  in  some  act  of  legis- 
lation. The  contract  may  be  made  in  writing,  or  by 
word  of  mouth;  it  may  be  formal,  or  by  implication. 
In  any  case  where  it  is  intended  to  make  a  contract 
for  the  governmental  body  this  fact  should  be  clearly 
understood,  and  the  written  contract  should  so  state. 
If  the  officer  has  not  the  distinct  authority  to  make 
the  contract,  the  contract  will  be  null  and  void.  In 
such  a  case  the  question  naturally  arises,  Can  the  offi- 
cer be  held  personally  liable  on  such  a  void  contract, 
especially  when  the  other  party  has  acted  in  good  faith, 
and  has  sustained  injury  thereby?  In  such  cases  there 
is  a  well  denned  distinction  between  one  who  is  acting 
as  an  agent  for  a  private  person  or  concern,  and  one 
who  claims  to  represent  the  public.40  The  public  offi- 
cer must  act  under  authority  if  he  presumes  to  make  a 
contract,  and  because  the  matter  is  public  the  party 
with  whom  he  is  dealing  may  easily  learn  from  other 
sources  whether  or  not  such  authority  for  contract 

*°  Mechem  on  Agency,  426. 


LIABILITIES  509 

exists,  and  the  terms  of  the  authority.  In  dealing  with 
the  agent  of  a  private  concern  such  knowledge  of 
authority  is  more  difficult,  and  for  that  reason  he  may 
be  the  more  easily  imposed  upon.  It  is  never  presumed 
that  the  public  officer  intends  to  personally  assume  the 
obligation.41  If  such  personal  liability  is  intended  to  be 
assumed  by  the  officer  that  must  be  clearly  stated,  and 
when  so  stated  he  will  be  held  liable,  and  personally 
bound  to  assume  the  obligation.42  If,  therefore,  under 
such  circumstances  one  dealing  with  an  officer  seeks 
to  hold  him  personally  liable  he  must  show  that, 
though  a  public  officer,  the  officer  was  dealing  with  him 
as  a  private  individual.43  If  he  is  acting  as  a  public 
officer,  and  "his  authority  to  act  is  denned  by  public 
statute,  all  who  contract  with  him  will  be  presumed 
to  know  the  extent  of  his  authority,  and  cannot  allege 
their  ignorance  as  a  ground  for  charging  him  with  act- 
ing in  excess  of  such  authority,  unless  he  knowingly 
misled  the  other  party.' ' 44  Therefore,  persons  dealing 
with  a  public  officer  or  agent  are  charged  with  know- 
ing the  extent  of  the  authority  of  such  agent.45  "It  is 
much  against  public  policy  to  cast  the  obligations  that 
justly  belong  to  the  body  politic  upon  this  class  of 
officials."46    "The  natural  presumption  in  such  cases 

4i  Knight  v.  Clark,  48  N.  J.  L.  45  Mayor   v.    Eschbach,    18    Md. 

22;  Hodgson  v.  Dexter,  1  Cranch,  283;  Mayor  of  Baltimore  v.  Beyn- 

345;    Crowell   v.   Crispin,   4   Daly,  olds,  20  Md.  1;  Lee  v.  Munroe,  7 

100;    Tippits  v.   Walker,   4   Mass.  Craneh,    366;    State    v.    Bank,    45 

595;  Pine  v.  Huber  Mfg.  Co.,  83  Mo.    528;    State   v.    Hastings,    10 

Ind.  121.  Wis.  518;  The  Floyd  Acceptances, 

42  Cahokia  v.  Bautenberg,  88  111.  7  Wall.  680 ;  Clark  v.  Des  Moines, 
219;  Wing  v.  Glick,  56  Iowa,  473.  19  Iowa,  199;  Whiteside  v.  U.  S., 

43  Ogden  v.  Baymond,  22  Conn.  93  U.  S.  247. 

379.  4c  Beardsley,  Ch.  J.  in  Knight  v. 

44  Newman  v.  Sylvester,  42  Ind.       Clark,  48  N.  J.  L.  22. 
112. 


510  PUBLIC    HEALTH   ADMINISTRATION 

is  that  the  contract  was  made  upon  the  credit  and 
responsibility  of  the  government  itself,  as  possessing 
an  entire  ability  to  fulfill  all  its  just  contracts,  far 
beyond  that  of  any  private  man;  and  that  it  is  ready  to 
fulfill  them  not  only  with  good  faith,  but  with  punc- 
tilious promptitude,  and  in  a  spirit  of  liberal  cour- 
tesy."47 

§  370.  Officer  not  ordinarily  liable  on  implied  author- 
ity. ' '  When  the  public  agents,  in  good  faith,  contract 
with  parties  having  full  knowledge  of  the  extent  of 
their  authority,  or  who  have  equal  means  of  knowledge 
with  themselves,  they  do  not  become  individually 
liable,  unless  the  intent  to  incur  a  personal  responsi- 
bility is  clearly  expressed,  although  it  should  be  found 
that  through  ignorance  of  law  they  may  have  exceeded 
their  authority.  *  *  *  In  this,  as  in  other  cases, 
the  intention  of  the  parties  governs,  and  when  a  per- 
son, known  to  be  a  public  officer,  contracts  with  refer- 
ence to  the  public  matters  committed  to  his  charge,  he 
is  presumed  to  act  in  his  official  capacity  only, 
although  the  contract  may  not  in  terms  allude  to  the 
character  in  which  he  acts,  unless  the  officer  by  unmis- 
takable language  assumes  a  personal  liability  or  is 
guilty  of  fraud  or  misrepresentation.  Being  a  public 
agent  with  his  powers  and  duties  prescribed  by  law, 
the  extent  of  his  powers  is  presumed  to  be  as  well 
known  to  all  with  whom  he  contracts  as  to  himself. 
When,  therefore,  there  is  no  want  of  good  faith,  a 
party  contracts  with  such  an  officer  with  his  eyes  open, 
and  has  no  one  to  blame  if  it  should  afterwards  appear 
that  the  officer  had  not  the  authority  which  it  was  sup- 
posed he  had. ' ' 4S 

*7  Story  on  Agency,  302.  Neal,  4  Minn.  126.    Also,  McCurdy 

48Emmett,  Ch.  J.  in  Sanborn  v.       v.  Rogers,  21  Wis.  197;  Murray  v. 


LIABILITIES  511 

§  371.  When  officer  is  liable  on  contract.  Where  an 
officer  fraudulently  or  deceitfully  conceals  or  misrep- 
resents the  facts  as  to  his  authority;  or  makes  repre- 
sentations as  to  his  authority  as  matter  of  fact,  rather 
than  of  law,  he  will  be  held  personally  liable.49  So  a 
public  officer  who  denies  to  his  government  that  he 
made  a  given  contract,  and  by  such  denial  prevents  the 
other  party  from  recovering  from  the  government, 
thereby  disavows  the  fact  of  his  acting  as  a  public 
agent,  and  makes  himself  personally  liable.50  So,  also, 
an  officer  may  be  held  liable  where,  concealing  the  fact 
of  his  agency,  he  makes  a  contract  as  the  real  prin- 
cipal.51 Where  the  officer  knows  that  he  has  no  author- 
ity to  make  the  contract,  but  the  other  party  may  not 
easily  know  the  condition,  as  when  the  authority  has 
ceased,  or  where  the  authority  must  depend  upon  facts 
not  within  the  knowledge  of  the  other  party,  it  is  quite 
likely  that  the  officer  may  be  held  liable.52 

§  372.  Application  to  health  officers.  In  the  course 
of  a  health  officer's  work  it  may  sometimes  happen 
that  attempt  is  made  to  hold  either  his  government,  or 
himself,  for  the  value  of  animals  killed,  or  goods 
destroyed,  or  for  time  lost  through  quarantine. 
Especially  when  newly  appointed,  officers  through 
ignorance  of  the  law  may  sometimes  promise  to  the 
interested  parties  that  compensation  will  be  given ;  or 
such  compensation  may  be  demanded.  Thus,  a  horse 
was  killed  by  order  of  a  board  of  health,  and  the  owner 

Carothers,    1    Mete.    71;    Perry   v.  so  Freeman  v.  Otis,  9  Mass.  272. 

Hyde,    10   Conn.   329;    New   York,  si  Mechem  on  Agency,   554. 

Etc.  Co.  v.  Harbison,  16  Fed.  Kep.  52  McDonald,  v.   Franklin   Co.,   2 

688.  Mo.  218;  McClenticks  v.  Bryant,  1 

49  Mechem  on  Agency,  542,  543,  Mo.   598 ;    Buggies  v.   Washington 

544,  545;  Mechem,  Pub.  Off.  810,  Co.,  3  Mo.  501. 
811,  814,  citing  cases. 


512  PUBLIC   HEALTH  ADMINISTRATION 

sued  the  members  of  the  board.  The  board  had  decided 
that  the  horse  was  suffering  from  glanders,  but  the 
court  decided,  after  listening  to  evidence,  that  the 
horse  did  not  have  glanders,  and  held  the  members  of 
the  board  liable.53  Though  this  case  did  not  hinge  upon 
a  claim  of  contract,  such  an  implied  contract  may  some- 
times be  claimed.  This  was  a  case  of  summary  abate- 
ment, and  had  the  owner  been  permitted  to  prove  be- 
forehand that  his  horse  was  not  a  nuisance,  that  it  was 
sound  from  the  public  health  standpoint,  the  decision 
would  probably  have  been  different.  Practically  the 
supreme  court  of  Massachusetts  decided  in  this  case 
that  the  destruction  of  sound  property  without  com- 
pensation was  contrary  to  law.  The  act  of  the  board 
could  not  bind  the  government,  for  there  was  no 
authority  for  such  an  implied  liability.  Under  the 
general  rule  the  board  should  not  have  been  held  liable 
for  an  error  of  their  judgment,  an  error  in  the  use  of 
their  discretion.  But  their  discretion  implies  careful- 
ness in  its  application,  and  a  true  examination  into  the 
conditions.  If  there  were  question  as  to  the  correct- 
ness of  the  diagnosis,  that  doubt  should  if  possible  have 
been  cleared  before  summary  action  was  taken.  For 
failure  to  use  such  caution  the  board  was  held  liable. 
In  a  similar  manner  a  health  officer  was  held  personally 
liable  for  destruction  of  cattle  which  were  in  fact  not  a 
nuisance  nor  a  cause  of  sickness  endangering  public 
health,  but  were  mistakenly  adjudged  by  him  so  to  be. 
He  had  exceeded  his  authority.  Had  he  acted  wisely 
the  municipality  could  not  have  been  held  liable,  for 
under  rightful  use  of  police  power  there  is  no  assump- 

ss  Miller   v.    Horton,    152    Mass. 
540. 


LIABILITIES  513 

tion  of  liability.  Having  committed  an  ultra  vires  act 
the  officer  could  not  claim  immunity  under  police 
power.  The  only  way  in  which  abuse  of  power  can  be 
prevented  is  by  the  imposition  of  a  penalty  for  harm 
done.  Because  the  health  officer's  official  duties  did 
not  include  this  act,  the  municipality  could  not  be  held 
liable.  The  health  officer  himself,  the  man  who  com- 
mitted the  wrong,  though  with  apparently  honest  inten- 
tions and  poor  judgment,  was  the  only  one  who  could 
be  held  liable  for  the  act.54 

Property  destroyed  under  the  proper  use  of  police 
power  requires  no  compensation  according  to  the  com- 
mon law.55  It  is  not  a  taking  of  property  for  the  pub- 
lic use,  as  in  eminent  domain,  but  the  prevention  of 
its  use  to  the  public  detriment;  not  its  taking  because 
it  is  useful  to  the  public,  but  because  it  is  harmful, 
and  "the  property  itself  is  the  cause  of  the  public 
detriment."56  Ex  parte  condemnations  of  property 
are  not  conclusive.57  On  the  other  hand,  it  is  not 
always  necessary  to  prove  that  the  property  destroyed 
was  in  fact  a  nuisance.  During  a  cholera  epidemic  a 
board  of  health,  without  formal  notice  to  the  owner, 
had  condemned  his  property  as  a  nuisance,  and  by 
order  of  the  members  of  the  board  the  property  was 
destroyed.  In  his  suit  for  trespass  the  plaintiff  was 
not  permitted  to  prove  that  the  property  had  not  in 
fact  been  a  nuisance,  and  the  board's  decision  was  held 
conclusive.58    But  in  this  case  the  owner  had  previously 

54  Lowe  v.  Conroy,  97  N.  W.  E.  Stock    Commrs.,    115    Mich.    488; 

942;  120  Wis.  151.  Lowe  v.  Conroy,  97  N.  W.  E.  942; 

ss  Freund,  Police  Power,  517.  Waye  v.   Thompson,  L.  P.   15,  Q. 

se  Davidson  v.  New  Orleans,  96  B.  D.  342. 

XL  S.  97.  58  Van  Wormer  v.  Mayor  of  Al- 

57  Salem  v.   Eastern   E.    Co.,  98  bany,  15  Wend.  262. 
Mass.  431;  Shipman  v.  State  Live 


514  PUBLIC  HEALTH  ADMINISTRATION 

appeared  before  the  board  with  reference  to  this  same 
property,  and  he  had  therefore  had  sufficient  notice. 
It  is  not  unlikely  that  the  imperativeness  of  the  emer- 
gency may  have  been  taken  into  account  by  the  court. 

Summary  action,  when  taken  unnecessarily,  may 
very  properly  be  considered  such  an  abuse  of  discre- 
tion as  to  take  from  the  officer  the  ordinary  protection 
accorded  to  such  officers  in  the  use  of  their  discre- 
tionary authority.  While  this  personal  liability  thus 
imposed  may  sometimes  work  a  hardship  upon  the 
officer,  and  possibly  subject  him  to  hampering  annoy- 
ances, yet  this  protection  is  necessary  for  the  public, 
for  without  it  abuse  of  the  discretion  by  incompetent, 
or  corrupt,  officials  would  be  very  hard  to  prevent. 
A  case  settled  without  suit  well  illustrates  this  pos- 
sibility. The  keeper  of  a  general  store,  chiefly 
groceries,  lived  with  his  family  above  the  store.  The 
family  were  much  of  the  time  in  the  store.  The  chil- 
dren had  scarlet  fever,  and  not  only  were  they  quar- 
antined, but  the  entire  stock  of  groceries  was  ordered 
destroyed.  Now  it  would  be  very  difficult,  or  impos- 
sible, to  prove  that  the  stock  of  goods  had  been  suffi- 
ciently exposed  to  render  them  dangerous,  especially 
as  most  of  them  were  in  sealed  packages.  The  clos- 
ing of  the  store  and  the  destruction  of  the  goods  effec- 
tually drove  the  proprietor  out  of  business  and  gave 
the  trade  to  his  competitors  who  had  previously  not 
been  successful  to  the  same  degree.  Such  a  case 
demonstrates  how  great  would  be  the  danger  were 
health  officials  permitted  thus  to  use  summary  action 
in  connection  with  their  discretion. 

§  373.  Liability  of  employees.  Much  of  the  work  of 
every  governmental  body  is  done  by  employees,  rather 


LIABILITIES  515 

than  by  officers.  In  a  health  department,  except  as 
there  be  a  statute,  or  ordinance  of  a  city  establishing 
such  offices  and  denning  their  duties,  all  of  the  work 
of  the  laboratory,  the  inspections,  the  fumigations,  and 
the  policing,  which  is  performed  by  subordinates,  is 
done  by  employees,  rather  than  by  officers.  Most  of 
the  work  of  mosquito  reduction,  or  of  rat  extermina- 
tion, is  done  by  employees.  Employees  have  no  official 
discretion.  It  is  their  duty  to  obey  the  law  and  their 
superiors.  So  long  as  they  keep  within  the  law,  and 
within  the  line  of  their  duty  as  prescribed  by  their 
superiors,  they  will  share  the  immunity  of  their 
superior  officers  in  matters  of  tort :  but  if  in  obedience 
to  the  commands  of  the  officer  they  commit  some  ultra 
vires  act,  through  which  injury  may  result  to  a  third 
person,  they  will  be  individually  liable,59  and  when  the 
employee  does  that  which  is  not  lawful  he  cannot  seek 
to  shield  himself  under  the  immunity  of  his  superior.60 
§374.  Liability  of  city  for  performance  of  public 
duties.  An  incorporated  city  stands  before  the  law 
like  an  individual  officer.  As  some  official  duties  are 
discretionary  in  their  operation,  while  others  are  minis- 
terial or  mandatory,  so  some  of  the  duties  of  the  city 
are  vested  with  discretion,  and  others  are  compulsory. 
The  city  is  not  liable  to  individuals  for  injury  in  the 
performance  of  duties  vested  with  discretion  in  the 
line    of    purely    governmental    action.61      Prominent 

59  Story  on  Agency,  311,  312;  Harrington  v.  Fuller,  18  Me.  277; 
Brown  v.  Howard,  14  Johns.  119;  Sheldon  v.  Payne,  7  N".  Y.  458; 
Coventry  v.  Barton,  17  Johns.  142;  Eobertson  v.  Siehel,  127  U.  S. 
Fielder  v.  Maxwell,  2  Blatch.  507;  Dunlop  v.  Munroe,  7  Cranch, 
(U.  S.  C.  C.)  552;  Tracy  v.  242;  Keenan  v.  Southworth,  110 
Swartwout,   10  Pet.   80;    Smith  v.  Me.  474. 

Colby,     67     Me.     169;     Cubit     v.  si  Verdon  v.  Bowman,  97  N.  W. 

O'Dett,  51   Mich.   347.  229;    Kempster   v.    Milwaukee,   79 

60  State  v.  Moore,  19  Mo.  369;       N.  W.  411. 


516  PUBLIC    HEALTH   ADMINISTRATION 

among  these  duties  we  find  the  preservation  of  the 
public  health.  Thus  Ingersoll  says: 62  "Nor  is  a  city 
liable  for  the  misconduct  of  its  health  department,  or 
any  of  its  health  officers,  since  sanitation  is  a  public 
rather  than  a  municipal  duty."63  "In  carrying  out 
the  laws  for  the  preservation  of  the  public  health  the 
city  is  performing  a  duty  which  it  owes  to  the  whole 
public  as  distinguished  from  a  mere  corporate  duty. 
It  is  a  duty  which  it  is  bound  to  see  performed  in 
pursuance  of  law  as  one  of  the  governmental  agencies, 
but  not  a  duty  from  which  it  derives  special  benefits 
or  peculiar  advantages  in  its  corporate  or  private' 
capacity.  It  is  like  the  administration  of  the  fire  and 
police  departments.  It  is  well  settled  that  a  city  may 
indemnify  its  officers  against  liabilities  incurred  in  the 
discharge  of  their  duties  where  the  city  had  a  right 
to  defend,  or  had  a  pecuniary  or  corporate  interest  in 
the  discharge  of  such  duty,  but  not  where  the  officer 
was  acting  simply  as  an  official  performing  a  public 
service,  such  as  the  preservation  of  the  public  health. 
If  the  city  cannot  legally  agree  to  indemnify  such 
officer,  it  plainly  cannot  be  liable  without  agreement. 
If  the  common  council  was  guilty  of  an  actionable  tort 
in  maliciously  encouraging  the  prosecution  of  the 
plaintiff,  its  members  must  answer  therefor  in  their 
individual  capacity;  there  would  be  no  corporate  lia- 
bility."64 The  municipality  cannot  be  held  liable  for 
the  mistakes  of  its  officers  in  the  diagnosis,  quarantine, 

62  Pub.  Corp.  137.  402;   Whitfield  v.   Paris.   84  Tex. 

63  City  of  Dalton  v.  Wilson,  118       431. 

Ga.   100;    Summers  v.  Board,   103  64Kempster    v.    Milwaukee,    79 

Ind.  262;  Love  v.  Atlanta,  95  Ga.  N.  W.   411,  citing:     Lawrence  v. 

129;    Ogg    v.    Lansing,    35    Iowa,  McAlvin,  109  Mass,  311;  Uren  v. 

495;  Bryant,  v.  St.  Paul,  33  Minn.  Walsh,   57   Wis.    98;    Bobinson    v. 

289;  Brown  v.  Vinalhaven,  65  Me.  Bohr,  73  Wis.  436. 


LIABILITIES  517 

or  care  of  cases  of  infectious  diseases.65  In  general  it 
may  be  stated  that  a  municipal  corporation  is  not 
civilly  liable  for  the  nonfeasance,  malfeasance,  or 
misfeasance  of  its  officers  or  agents  while  engaged  in 
the  governmental  duties  of  the  corporation.66  Con- 
trary to  the  above,  and  we  believe  not  in  accord  with 
present  methods  of  interpretation,  is  the  case  of 
Sumner  v.  Philadelphia,67  as  published  in  a  Public 
Health  Bulletin  of  the  IT.  S.  Public  Health  Service,68 
in  which  it  was- held  that  "When  a  vessel  is  in  a  con- 
dition of  cleanliness  and  freedom  from  malignant  dis- 
ease, which  entitles  her  owners  to  take  her  to  sea,  the 
purely  arbitrary  detention  of  the  vessel  by  a  board  of 
health  entitles  her  owners  to-  a  recovery  for  the  dam- 
ages suffered,  and  the  city  is  liable  therefor. ' '  Excep- 
tion is  here  taken  only  to  the  last  clause.  All  arbitrary 
action  is  not  "with  discretion,"  and  is  not  counte- 
nanced in  law.  Officers  acting  arbitrarily  are  in  so  far 
not  officers,  but  private  wrong  doers,  because  they 
exceed  their  authority.  Such  officers,  are  therefore  per- 
sonally liable  for  the  torts  committed.  (§§  273,  363  and 
following.)  Because  they  are  not  in  such  acts  officers 
of  the  municipality,  and  because  the  detention  of  a 
vessel  in  quarantine  is  a  public,  rather  than  a  corporate 
duty,  it  does  not  seem  that  in  such  a  case  the  munici- 
pality should  be  held  liable.    Since  all  this  is  true,  and 

esBeeks    v.    Dickinson    Co.,    131  leans,  9  La.  Ann.  461;  Dargan  v. 

Iowa,    244;     Valentine    v.    Engle-  Mobile,   31  Ala.  469;    Keardon  v. 

wood,    76   N.   J.    L.   509 ;    Ogg  v.  St.  Louis,  30  Mo.  555 ;   Martin  v. 

Lansing,  35  Iowa,  495;  Richmond  Brooklyn,    1    Hill,    550;    Western 

v.   Long's   Adm'r,    17   Grat.    375;  College  v.  Cleveland,  12  Ohio,  375; 

Kolloek  v.  Stevens  Point,  37  Wis.  Richmond    v.    Long's    Admr.,    17 

348;    Having  v.   Covington,  78    S.  Grat.  375. 

W.  431.  67  9  Phila.  408. 

ee  Sherburne    v.    Yuba    County,  es  No.    62.     (1914.) 
21  Cal.   113;   Stewart  v.  New  Or- 


518  PUBLIC   HEALTH  ADMINISTRATION 

the  citizens  have  no  recourse  against  an  incompetent 
health  officer,  though  his  powers  are  great,  it  follows 
that  the  citizens  are  especially  interested  in  seeing  to 
it  that  the  health  officer  selected  shall  be  both  compe- 
tent and  efficient.  A  municipal  corporation  is  not  liable 
for  the  value  of  property  destroyed  by  mistake  on  the 
order  of  its  health  officers.69  Neither  is  a  city  liable 
for  the  trespass  of  its  mayor,  police  officers,  and  city 
physician  in  quarantining  and  detaining  a  body  of 
yellow  fever  suspects  in  a  hotel.70 

As  we  have  already  said,  according  to  the  common 
law  there  is  no  liability,  either  for  officers  or  the  cor- 
poration, for  property  destroyed  as  a  nuisance.  As  a 
matter  of  policy,  and  of  equity,  statutes  are  sometimes 
passed  by  the  state,  or  ordinances  by  the  city,  provid- 
ing for  some  compensation.  A  cow  afflicted  with  tuber- 
culosis may  still  have  considerable  pecuniary  value. 
Her  milk  may  be  deprived  of  its  danger  by  efficient 
pasteurization.  She  may  be  used  for  breeding  pur- 
poses, and  her  calf  may  be  free  from  disease.  In  other 
words,  although  she  may  be  a  danger  in  the  community, 
still  it  is  possible  so  to  care  for  her  that  the  danger 
will  be  controlled,  and  her  value  preserved.  Manifestly 
her  value  is  not  that  of  a  perfectly  sound  animal.  It 
may  be  for  the  public  good  that  she  be  killed.  Because 
the  nuisance  is  so  vitally  connected  with  the  property 
of  value,  to  thus  abate  the  nuisance  would  deprive  the 
owner  of  his  property  without  compensation.  It  is 
therefore  very  proper,,  as  many  of  the  states  have 
enacted,  that  some  compensation  be  given  for  such 
animals  destroyed.   (§§  206  to  211.) 

69  Lowe    v.    Conroy,    97    N.    W.  ™  City  of  San  Antonio  v.  White, 

942;    Creier   v.    Town    of    Fitzwil-       57  S.  W.  B.  858. 
liam,  83  At,  128. 


LIABILITIES  519 

In  a  similar  manner,  if  it  be  for  the  public  good  that 
healthy  persons  who  have  come  in  contact  with  infec- 
tious diseases  be  deprived  of  their  liberty  by  quaran- 
tine and  thus  prevented  from  earning  their  usual  wage, 
while  at  the  same  time  they  must  live,  it  is  very  proper 
that  by  legislation  some  provision  should  be  made  for 
their  support  at  least.  Not  only  is  such  a  course  justi- 
fiable as  a  matter  of  equity,  but  it  seems  often  to  be 
good  policy,  especially  in  dealing  with  the  laboring- 
class,  for  it  takes  away  a  very  potent  excuse  for  hiding 
cases  of  infection.  Every  health  officer  has  known  of 
numerous  instances  where  infectious  disease  has 
spread  through  the  fear  that  if  a  physician  be  called,  the 
entire  family  would  be  quarantined  and  thus  prevented 
from  attending  to  their  usual  avocations.  Nor  is  this 
only  true  of  the  laboring  classes,  but  those  higher  in 
the  financial  scale  not  infrequently  manage  to  keep 
their  cases  hidden  from  the  health  department.  While 
it  is  probable  that  owing  to  the  advances  made  in  sani- 
tary science,  such  rigid  quarantine  may  soon  be  a 
thing  of  the  past,  it  still  remains  true  that  some  pro- 
vision should  be  made  for  the  support  of  those  thus 
restrained.    (See  §  415.) 

§  375.  Liability  for  municipal  duties.  When  we  come 
to  the  purely  municipal  duties  of  a  city,  those  depend- 
ent upon  the  corporation,  the  conditions  are  very  dif- 
ferent. It  is  a  duty  of  the  city,  oftentimes,  to  provide 
pure  water  for  the  citizens.  "The  contrary  cannot  be 
maintained  unless  we  hold  that  a  municipal  corpora- 
tion may  by  mere  implication  bargain  away  its  duty 
to  protect  the  public  health  and  safety,  as  they  are 
involved  in  supplying  the  people  with  sufficient  water. 
Nothing  can  be  more  important  or  vital  to  any  people 


520  PUBLIC   HEALTH   ADMINISTRATION 

than  that  they  should  be  supplied  with  pure,  whole- 
some water."71  Among  the  earliest  of  governmental 
activities  none  was  more  important  than  this  form  of 
public  utility.  We  still  find  the  remains,  often  in  good 
preservation,  of  old  aqueducts  constructed  for  the  pur- 
pose of  supplying  cities  with  water.  In  modern  times 
it  has  been  a  common  custom  for  a  few  capitalists  to 
combine  for  the  purpose  of  deriving  a  profit  from  the 
business  of  thus  supplying  water.  Municipal  owner- 
ship of  a  water  plant  is  not  an  innovation.  It  is  rather 
the  private  company  which  is  modern  in  origin.  But 
whether  the  city  furnishes  water  through  municipal 
ownership,  or  through  the  instrumentality  of  a  private 
corporation,  the  responsibility  is  still  upon  the  city  to 
provide  its  citizens  with  a  bountiful  supply  of  pure 
water.  If  it  make  a  contract  with  a  private  corpora- 
tion, through  franchise,  the  city  does  not  shirk  its  duty 
thereby.  The  corporation  must  understand  that  it  is 
its  duty  under  the  contract  to  supply,  not  water  simply, 
but  pure  water.7  la 

Since  public  ownership  of  public  utilities  comes  into 
commercial  competition  with  private  enterprises,  to 
that  extent  the  municipality  is,  and  must  be  legally 
regarded  as  a  business  corporation,72  and  as  such  it 
is  subject  to  the  same  principles  of  legal  application 
as  govern  the  quasi-public  corporations.73  If  the  city 
provides  water  for  its  citizens  free,  so  that  it  is  acting 
purely  in  its  public  capacity,  and  deriving  no  profit 
therefrom,  the  city  may  not  be  charged  with  damages 

7i  Vieksburg  v.  Vicksburg  Water  73  Bailey  v.   New  York,  3  Hill, 

Works  Co.,  202  U.  S.  453.  531;    Thayer  v.   Boston,    19   Pick. 

7ia  Mayor  of  Jersey  City  v.  511;  Western  Sav.  Fund  Soc.  v. 
Flynn,  74  N.  J.  Eq.  104.  Philadelphia,  31  Pa.  185. 

72Baily  v.  Philadelphia.  184  Pa. 
594;  Aldrich  v.  Tripp,  11  E.  I. 
141. 


LIABILITIES  521 

by  a  private  citizen.74  But  when  it  charges  for  the 
water  supplied  it  is  then  acting  in  its  corporate 
capacity,  and  it  is  liable  for  the  injury.75  Thus,  where 
a  city  furnishes  water  contaminated  with  typhoid 
germs,  it  may  very  properly  be  held  liable  for  the 
damages  accruing.76  As  Chief  Justice  Nelson  said,77 
relative  to  the  power  of  a  municipality  to  construct 
and  maintain  water  works:  "If  the  grant  is  for  the 
purpose  of  private  advantage  and  emolument,  though 
the  public  may  derive  a  common  benefit  therefrom,  the 
corporation  quoad  hoc  is  to  be  regarded  as  a  private 
company.  It  stands  upon  the  same  footing  as  would 
any  individual  or  body  of  persons  upon  whom  the  like 
special  franchise  had  been  conferred. ' '  A  similar  rule 
applies  to  cemeteries  owned  by  the  city,  and  from 
which  it  may  derive  an  income.78    (§§  430-436.) 

There  seems  to  be  some  difference  of  opinion  whether 
or  not  the  city  should  be  considered  as  a  governmental 
body,  or  as  a  corporation,  in  its  care  of  sewers.  (§§  440- 
443.)  (It  is  proper  to  state  that  the  basis  for  this 
discussion  of  liability  of  cities  for  construction  and 
maintenance  of  sewers  is  to  be  found  in  Ingersoll  on 
Public  Corporations,  Sec.  144.)  There  is  a  general 
agreement  that  a  city  is  exercising  governmental  dis- 
cretion in  deciding  whether  or  not  to  build  sewers,  and 
in  selecting  its  plans  for  construction,  and  it  therefore 

t*  Danaher  v.  Brooklyn,  51  Hun,  76  Milnes  v.  Huddersfield,  L.  E. 

563.  10  Q.  B.  Div.  124;  Keever  v.  Man- 

75  Chicago  v.  Selz,  202  111.  545;  kato,  113  Minn.  55. 

Augusta  v.  Lombard,  99  Ga.  282;  77  Bailey  v.  Mayor,  3  Hill,  531. 

Whitfield    v.     Carrolton,    50    Mo.  78  City    of    Toledo    v.    Cone,    41 

App.  98;  Bailey  v.  Mayor,  3  Hill,  Ohio,  149. 
531 ;    Stock  v.   Boston,    149   Mass. 
410;    Aldrich   v.    Tripp,    11    R.    I. 
141. 


522  PUBLIC   HEALTH   ADMINISTRATION 

incurs  no  liability  for  the  negligence  or  errors  of  its 
officers  and  employees  in  these  matters.79  Having 
adopted  a  plan  the  city  is  not  liable  for  injuries  result- 
ing because  adequate  means  have  not  been  provided 
for  carrying  off  the  accumulated  waters.80  Neither  is 
a  city  responsible  for  the  condition  of  its  sewers, 
though  bound  to  use  reasonable  care  in  keeping  them 
in  repair.81 

Although  there  is  governmental  discretion  in  decid- 
ing on  the  plans  for  a  sewer  system,  the  preponder- 
ance of  judicial  opinion  recognizes  the  liability  of  a 
city  for  damages  resulting  from  its  neglect  to  properly 
discharge  its  ministerial  duty  to  exercise  reasonable 
care  in  the  construction  and  maintenance  of  its 
sewers,82  and  the  fact  that  the  sewer  was  originally 
constructed  by  the  state  does  not  affect  the  question 
as  to  the  liability  of  the  city  for  the  care.S3  Municipal 
ownership  is  not  essential  to  liability;  municipal  con- 
trol will  be  sufficient.84    On  the  other  hand,  municipal 

79Benthan  v.  Philadelphia,   196  402;  Donahoe  v.  Kansas  City,  136 

Pa.     302;     Pressman     v.     Dickson  Mo.  657;  Clay  v.  St.  Albans,  43  W. 

City,  13  Pa.  Super.  Ct.  236;  Burger  Va.    539;    Baltimore  v.   Schnitker, 

v.      Philadelphia,      196      Pa.      41  j  84  Md.  34;   Flori  v.  St.  Louis,  69 

Bealafield  v.  Verona,  188  Pa.  627;  Mo.    341;    Stock    v.    Boston,    149 

King  v.  Kansas  City,  58  Kas.  334;  Mass.  410;  Rochester  White  Lead 

Champion    v.    Crandon,     84    Wis.  Co.    v.    Rochester,    3    N.    Y.    463 

405;  Cummins  v.  Seymour,  79  Ind.  Kranz  v.  Baltimore,   64  Md.   491 

491;   Mills  v.  Brooklyn,  32  N.  Y.  Detroit    v.    Corey,    9    Mich.    165 

489;   Perry  v.  Worcester,  6  Gray,  Montgomery    v.    Gilmer,    33    Ala 

544;  Johnston  v.  Dist.  of  Col.,  118  116;  Semple  v.  Vicksburg,  62  Miss 

U.  S.  19 ;  Child  v.  Boston,  4  Allen,  63 ;   Gilman  v.  Laconia,  55  N.  H 

41.  130;    Bates    v.    Westborough,    151 

so  Stevens     v.     Muskegon,     111  Mass.  174;   Judge  v.  Meriden,  38 

Mich.  72;   Cooper  v.  Scranton,  21  Conn.  90. 

Pa.  Super.  Ct.  17.  83  Chalkley  v.  Richmond,  88  Va. 

siWeldman    v.    New    York,    84  402. 

App.  Div.  321.  84  Taylor    v.    Austin,    32    Minn. 

82  Chalkley  v.  Richmond,  88  Va.  247. 


LIABILITIES  523 

ownership  of  the  land  over  which  the  drain  or  sewer 
runs  is  not  sufficient  to  cause  liability;  municipal  con- 
trol is  essential.85  A  sewer  constructed  chiefly  along 
the  public  streets  had  its  lower  portion  and  its  mouth 
located  on  private  grounds.  This  location  was  im- 
proper, and  the  city  had  not  used  reasonable  care  in 
exercising  its  discretion.  As  a  result  the  property 
of  the  plaintiff  received  the  discharged  sewage,  and 
the  city  was  held  liable.86  In  other  cases  the  city  has 
been  held  liable  for  the  damage  resulting  from  the 
flooding  of  property  by  the  discharged  sewage,  where 
the  flooding  was  the  natural  result  of  the  plan 
adopted,87  or  from  the  deposit  of  sewage.88  The  true 
rule  in  such  cases  seems  to  be  that  the  city  is  not  liable 
for  the  original  error  in  the  plans,  unless  the  results 
could  have  been  foreseen ;  but  it  is  the  continuance  of 
the  nuisance  after  it  has  been  found  to  exist.  In  one 
case  the  court  said:89  "We  are  also  of  the  opinion 
that  the  exercise  of  a  judicial  or  discretionary  power 
by  a  municipal  corporation,  which  results  in  a  direct 
and  physical  injury  to  the  property  of  an  individual, 
and  which  from  its  nature  is  liable  to  be  repeated  and 
continued,  but  is  remediable  by  a  change  of  plan,  or 

85Kosmak  v.  New  York,  117  N.  Cir.  Ct.  E.  610;  Owens  v.  Lancas- 

Y.  361.  ter,  182  Pa.  257;  Bacon  v.  Boston, 

86  Stoddard  v.  Saratoga  Springs,  154  Mass.  100;  Magee  v.  Brook- 
127  N.  Y.  261:  See  Beach  v.  lyn,  18  App.  Div.  22;  Boston  Belt- 
Elmira,  58  Hun,  606.  ing  Co.  v.  Boston,  149  Mass.  44; 

87  McCartney  v.  Philadelphia,  22  Ft.  Wayne  v.  Coombs,  107  Ind. 
Pa.  Super.  Ct.  257;  Semple  v.  75;  Attwood  v.  Bangor,  83  Me. 
Vicksburg,  62  Miss.  63;  Imler  v.  582;  Nashville  v.  Comar,  88  Tenn. 
Springfield,  55  Mo.  119;  Ashley  v.  415;  Stoddard  v.  Saratoga 
Port  Huron,  35  Mich.  296;  Stanch-  Springs,  127  N.  Y.  261. 

field  v.  Newton,  142  Mass.  110.  89  Seifert  v.  Brooklyn,  101  N.  Y. 

88  Bennett  v.  Marion,  119  Iowa,       136. 
473;    McBride  v.   Akron,   12   Ohio 


524  PUBLIC   HEALTH   ADMINISTRATION 

the  adoption  of  prudential  measures,  renders  the  cor- 
poration liable  for  such  damages  as  occur  in  conse- 
quence of  the  continuance  of  the  original  cause  after 
notice,  and  an  omission  to  adopt  such  remediable  meas- 
ures as  experience  has  shown  necessary  and  proper." 
A  difference  may  very  justly  be  made  between  the 
care  of  storm  water,  and  sewage.  A  city  is  not  liable 
because  the  storm  water  runs  from  the  street  onto 
adjoining  lots,90  So  the  city  has  a  right  to  construct 
drains  to  carry  such  street  water  into  natural  water- 
courses, so  long  as  reasonable  care  be  exercised.91  But 
it  may  be  held  liable  if  the  water  contain  sewage  which 
pollutes  the  stream  so  as  to  render  the  water  unfit  for 
use  by  the  riparian  owner  or  occupier ; 92  and  such 
pollution  of  a  running  stream  has  been  called  a  public 
nuisance ; 93  and  for  that  reason  in  some  cases  the  city 
has  been  enjoined  from  emptying  its  sewage  into  a 
running  stream,  where  such  nuisance  was  created.94 
The  sewage  problem  is  one  of  the  greatest  among  the 
sanitary  questions  for  city  governments.  Especially  for 
our  large  cities  it  is  a  question  which  must  be  met. 
There  seems  to  be  no  question  as  to  the  soundness  of 
the  decisions  which  hold  cities  liable  for  the  pollution 
of  running  streams  by  untreated  sewage.     But  with 

so  Jordan    v.    Benwood,    42    W.  93  Mayor     of     Birmingham     v. 

Va.  312;  Sievers  v.  San  Francisco,  Land,  137  Ala.  538;   Mansfield  v. 

115  Cal.  648.    See  Denver  v.  Duns-  Balliett,   65   Ohio,   451;    Owens  v. 

more,   7  Col.   328;    Smith  v.   New  Lancaster,  182  Pa.  257. 

York,  66  N.  Y.  295.  94  Haskell  v.  New  Bedford,  108 

si  Miller    &    Meyer    v.    Newport  Mass.  208 ;  Peterson  v.  Santa  Rosa, 

News,  101  Va.  432.  119  Cal.  387;  People  v.  San  Luis 

92  Pettigrew    v.    Evansville,    25  Obispo,  116  Cal.  617. 
Wis.  223;  Gould  v.  Rochester,  105 
N.  Y.  46;  Inman  v.  Tripp,  11  R.  I. 
520. 


LIABILITIES  525 

the  advances  made  in  sanitary  engineering  gross  pollu- 
tion of  waters  is  unnecessary.  In  a  recent  case  in  Eng- 
land the  court  appointed  no  less  a  person  than  Sir 
William  Eamsey  to  make  the  investigation  of  the 
results  of  turning  treated  sewage  into  a  stream,  and 
he  found  that  chemically  and  bacteriologically  the 
water  of  the  stream  was  better  below  than  above  the 
outlet  of  the  sewer.95 

§376.  Municipal  contracts,  liability  on.  There 
could  be  no  question  as  to  the  liability  of  a  municipality 
upon  contracts,  formally  made,  and  legal  in  form, 
where  the  contract  is  within  the  power  of  the  corpora- 
tion; but  because  it  is  a  corporation,  and  may  thus 
engage  in  enterprises  not  strictly  governmental,  the 
opportunity  for  contracts,  either  formal  or  implied,  is 
much  greater  than  in  ordinary  governmental  bodies. 
Further,  because  its  officers  and  employees  may  some- 
times bind  the  city  without  direct  authority,  in  munici- 
pal business  proper,  questions  as  to  liability  may  more 
frequently  arise.  Thus,  where  the  party  contracting 
with  the  officers  of  the  city  has  in  good  faith  performed 
his  part  of  the  contract,  the  city  will  be  estopped  from 
pleading  the  faults  or  shortcomings  of  its  own  officers 
or  agents  in  all  cases  which  are  within  the  corporate 
powers.96  But  if  the  contract  is  ultra  vires,  that  fact 
may  be  pleaded  whether  the  action  be  by,  or  against  the 
city.97  Where  a  portion  of  the  contract  is  within  the 
powers  of  the  corporation,  and  another  portion  is  ultra 

ss  Attorney  General  v.  Birming-  73   N.  Y.   238 ;   London,   &c  Land 

ham,  Tame  &  Eea  Dist.  Drainage  Co.    v.    Jellico,    103    Tenn.     320 ; 

Board,  L.  R.  Chan.  Div.  1910,  Vol.  Sharp  v.  Teese,  9  N.  J.  L.  352. 

1,  48.  97  Thoma3  v.  R,  R.  Co.,  101  U.  S. 

no  Hitchcock     v.     Galveston,     96  71 ;  Keen  v.  Coleman,  39  Pa.  299 ; 

U.   S.   341;    Thomas   v.   Richmond,  Hodges  v.  Buffalo,   2  Denio,   110; 

12  Wall.  349;  Moore  v.  New  York,  Ellis  v.  Cleburne,  35  S.  W.  R.  495. 


526  PUBLIC    HEALTH   ADMINISTRATION 

vires,  the  city  may  not  seek  to  get  out  of  the  entire 
contract  on  account  of  the  terms  made.  That  portion 
which  is  within  the  authority  of  the  city  will  be  held 
binding,  and  the  ultra  vires  portion  will  be  annulled. 
A  contract  which  was  within  the  power  of  the  city  to 
make  will  not  be  set  aside  because  it  was  stipulated 
in  the  contract  that  the  payment  was  to  be  made  in 
bonds,  though  the  officers  of  the  city  had  no  power  to 
issue  the  bonds. 9S  A  city  may  be  bound  by  an  implied 
contract,  just  as  an  individual  may  thus  bind  himself." 
An  action  in  assumpsit  will  lie  to  recover,  quantum 
meruit,  or  quantum  valebant,  where  no  fixed  compensa- 
tion has  been  agreed  upon,  or  where  no  express  con- 
tract has  been  made.100  A  city  which  retains  benefits 
under  a  contract  which  it  had  power  to  make,  though 
the  contract  was  void  because  of  irregularity  in  its 
execution,  is  still  bound,  "not  from  any  contract  en- 
tered into  on  the  subject,  but  from  the  general  obliga- 
tion to  do  justice  which  binds  all  persons,  whether 
natural  or  artificial. ' ' 1 

A  distinction  has  sometimes  been  made  in  such  mat- 
ters between  the  use  of  money  or  property,  and  the 
receiving  the  benefit  of  personal  services.  ' '  The  money 
must  have  gone  into  her  treasury,  or  been  appro- 
priated by  her;  and,  when  it  is  property  other  than 
money,  it  must  have  been  used  by  her  or  been  under 
her  control.    But  with  reference  to  services  rendered, 

as  Hitchcock    v.     Galveston,     96  ioo  Fox  v.  Richmond,  40  S.  W.  E. 

U.    S.    341;    111.    Trust    &   Savings  251;    Lincoln  Land  Co.  v.   Village 

Bank   v.    Arkansas   City,    76    Fed.  of  Grant,  57  Neb.  70. 
271.  i  Marsh  v.  Fulton  Co.,  10  Wall. 

99  Austin    v.    Bartholomew,    107  676;   Lincoln  Land  Co.  v.  Village 

Fed.  349;  Wentick  v.  Passiac  Co.,  of  Grant,  57  Neb.  70. 
66  N.  J.  L.  65. 


LIABILITIES  527 

the  case  is  different.  Their  acceptance  must  be  evi- 
denced by  ordinance,  or  express  corporate  action  to 
that  effect.  If  not  originally  authorized,  no  liability 
can  attach  upon  any  ground  of  implied  contract;  the 
acceptance,  upon  which  alone  the  obligation  to  pay 
could  arise,  would  be  wanting. ' ' 2  Such  a  distinction 
seems  unjust,  and  other  authorities  have  not  agreed  to 
that  dictum.3  Money  and  property  are  but  the  product 
of  labor,  and  the  capital  of  a  professional  man  is  gen- 
erally more  in  his  knowledge  and  ability,  than  in  the 
accumulations  which  he  has  made  in  the  bank.  The 
man  who  assists  in  determining  the  plans  to  be  fol- 
lowed in  constructing  a  sewer  system,  or  in  finding  the 
condition  of  a  city  water  supply  with  reference  to 
methods  to  be  used  for  purification,  thereby  puts  the 
city  as  truly  under  obligation  to  him  as  he  who 
advances  the  money  for  the  construction  of  the  works ; 
and  if  his  services  have  been  requested  by  an  officer 
of  the  city,  and  reports  made  to  him,  the  city  has 
as  truly  accepted  the  services  as  where  the  treasurer, 
without  corporate  action  accepts  money  for  the  use  of 
the  city.  So  where  a  Commissioner  of  Public  Works 
finds  a  necessity  for  the  doing  of  certain  work,  and 
he  asks  a  suitable  person  to  do  that  work,  the  city  as 
truly  accepts  his  services  when  rendered,  as  if  it  had 
taken  the  amount  of  the  man's  ordinary  wage  in  money. 
But  in  these  matters  a  distinction  must  be  kept  in 
mind  between  the  purely  governmental  duty  and 
authority  of  the  city,  and  those  activities  which  are 
strictly  corporate. 

2  Argenti   v.    San   Francisco,    16       Mayer    v.    Chicago,    38    111.    266 ; 
Cal.  255.  Peterson  v.   Mayer,   17  N.  Y.  450. 

3  Dillon,      Munic.      Corp.      464; 


528  PUBLIC    HEALTH   ADMINISTRATION 

§  377.  Respondeat  superior.  "To  determine  whether 
there  is  municipal  responsibility,  the  inquiry  must  be 
whether  the  department  whose  misfeasance  or  non- 
feasance is  complained  of  is  a  part  of  the  machinery 
for  carrying  on  the  municipal  government,  and 
whether  it  was  at  the  time  engaged  in  the  discharge 
of  a  duty  primarily  resting  on  the  municipality. ' ' 4 
The  city  is  not  responsible  for  the  acts  of  civil  officers 
of  government,  even  though  they  be  appointed  and 
paid  by  the  city.  But  when  the  corporation  is  under 
an  absolute  duty  to  perform  those  services,  or  where 
the  city  derives  a  profit  or  income  from  their  service, 
in  its  corporate  capacity,  it  is  then  liable.5  The  city 
may  thus  be  liable  for  the  acts  of  officers  appointed  by 
the  state  for  it.6 

Note.  For  the  liability  assumed  by  private  persons 
or  corporations  for  the  spread  of  infection  to  other  per- 
sons see  Section  418,  Chapter  XIV. 

*Pettingill  v.   Yonkers,   116   N.  e  Bailey  v.  Mayor,  3  Hill,  531. 

Y.  558. 

s  Sievers  v.   San  Francisco,  115 
Cal.  648. 


CHAPTER  XII 


LEGAL   REMEDIES 


§  378.  Civil   and   criminal   actions.       §  382.  Writ   of   prohibition   or   in- 

§379.  Quo  warranto.  junction. 

§  380.  Quo  warranto  not  to  restrain       §  383.  Certiorari. 
official  excesses.  §384.  Mandamus. 

§  381.  Kecovery  of  books  and  prop- 
erty, mandamus  or  re- 
plevin. 

§  378.  Civil  and  criminal  actions.  According  to  the 
usages  of  the  common  law,  revised  to  some  extent  by 
statutory  enactments,  there  are  certain  legal  remedies 
which  have  especial  relation  to  the  holders  of  public 
offices,  and  to  their  methods  of  conducting  their  offi- 
ces and  transacting  the  business  imposed  upon  them. 
While  the  practices  vary  slightly  in  the  several  states, 
as  prescribed  in  the  statutes,  there  is  in  each  a  gen- 
eral similarity  of  usage.  It  will  not  be  attempted  here 
to  give  a  full  discussion  of  each,  but  rather  to  give  a 
general  statement  of  when  each  is  to  be  used,  and  by 
what  method.  Our  concern  is  particularly  with  execu- 
tive officers  whose  duties  involve  the  preservation  of 
the  public  health.  In  the  discharge  of  their  duties 
it  may  frequently  become  necessary  for  them  to  pro- 
ceed, either  criminally  or  civilly,  against  violators  of 
the  laws  pertaining  to  health.  Such  actions  do  not  spe- 
cially differ  from  ordinary  criminal  or  civil  proceed- 
ings, and  do  not  need  special  attention  here.     Such 

529 


530  PUBLIC   HEALTH   ADMINISTRATION 

actions  should  not  be  brought  in  doubtful  cases,  unless 
it  be  desired  to  get  a  legal  interpretation  of  some 
statute  or  ordinance.  When  there  may  be  some  doubt 
as  to  the  legality  of  an  ordinance  or  statute,  or  some 
question  as  to  the  extent  of  powers  conferred  under  the 
statute,  such  doubts  and  questions  should  be  settled 
by  bringing  them  before  the  proper  court.  It  may 
often  seem  best  to  assume  that  the  enactment  is  legal, 
and  that  the  desired  power  is  granted,  leaving  the 
question  to  be  raised  by  some  presumably  injured 
party,  but  it  must  be  remembered  that  this  course 
exposes  the  officer  to  a  possible  liability  for  exceeding 
his  lawful  authority.  On  the  other  hand,  especially 
when  an  interpretation  of  the  law  is  desired,  it  should 
be  remembered  that  the  scientific  basis  for  the  enact- 
ment must  be  properly  presented  to  the  court,  or  at 
least  be  prepared  for  presentation.  It  is  not  sufficient 
to  show  that  there  was  a  technical  evasion  of  the  letter 
of  the  law.  The  defendant  will  probably  attempt  to 
show  that  the  operation  of  the  requirement  is  unneces- 
sary, and  that  it  works  a  hardship  upon  him.  Ordi- 
nances have  been  passed  specifying  that  milk  must 
have  at  least  three  and  a  half  per  cent  of  cream.  The 
facts  that  certain  milk  is  sold  as  it  came  from  the  cows, 
and  that  the  average  percentage  of  cream  from  an 
entire  herd  was  below  the  required  standard  would,  as 
they  have  in  the  past,  be  put  forward  to  show  that 
such  a  standard  is  arbitrary  and  unreasonable.  The 
prosecutor  must  therefore  be  prepared  to  show  what 
the  variations  are  in  the  percentage  of  cream  found 
in  cow's  milk.  It  must  further  be  remembered  by  the 
prosecutor  that  cattle  may  be  bred  for  gross  yield  of 
milk,  without  regard  to  quality,  or  they  may  be  bred 


•    LEGAL   REMEDIES  531 

for  a  maximum  of  butter  fat  or  for  casein  content. 
He  must  also  remember  that  by  feeding  brewery  slops 
the  gross  yield  of  milk  may  be  increased  by  dilution, 
and  that  not  infrequently  this  alteration  in  quality 
may  be  essentially  an  evidence  of  disease.  For  these 
facts  the  prosecutor  must  naturally  depend  upon  the 
health  administrator.  Consequently  it  is  the  duty  of 
the  health  administrator  to  be  fully  prepared  with  the 
scientific  data  which  may  be  needed. 

Violation  of  the  regulations  of  borough  boards  of 
health  may  not  be  punished  by  indictment;  the  proper 
procedure  is  a  civil  suit  for  the  penalty.1  Summary 
convictions  had  in  such  cases  will  be  set  aside  upon 
appeal.  The  authority  to  preserve  the  health  of  the 
inhabitants  is  lodged  in  the  municipality,  and  the 
members  of  the  board  of  health  are  officers  of  the  city. 
It  is  for  this  reason  that  suits  to  enforce  orders  of  a 
board  of  health  are  uniformly  brought  in  the  name  of 
the  city  or  town.2  A  borough  board  of  health  is  not  a 
corporation;  it  can  neither  sue  nor  be  sued.3  The 
court  of  common  pleas  has  no  jurisdiction  to  hear  an 
appeal  from  the  judgment  of  a  police  justice  in  a  suit 
for  a  penalty  for  violating  an  ordinance  of  a  board  of 
health.4  "A  sufficient  answer  to  the  argument  about 
the  right  of  appeal  being  arbitrarily  burdened  with 
oppressive  and  unnecessary  conditions  is  that  the  right 
of  appeal  is  neither  a  natural  nor  a  constitutional 
right,  but  a  statutory  one  which  the  legislature  may 
give  or  not  in  its  discretion,  and  if  it  gives  the  right 

i  Commonwealth     v.     Clark,     14  3  Commonwealth      v.    .  Olyphant 

Lane.  L.  Rev.  41  (1896).  Borough,  2  Lack.  L.  N.  181. 

2  Winthrop  v.  Farrer,   11  Allen,  «  Holzworth   v.    Newark,   21    Vr. 

398;    Trowbridge    v.    Tupper,    96  85. 
N.  E.  1096. 


532  PUBLIC   HEALTH   ADMINISTRATION 

it  may  give  it  on  such  conditions  as  it  may  deem 
proper.5  The  provision  in  the  Massachusetts  Statutes 
of  1897,  Chapter  510,  Section  4,  giving  to  persons 
aggrieved  by  an  order  passed  by  the  state  board  of 
health  the  right  of  appeal  applies  only  to  the  quasi- 
judicial  acts,  and  does  not  apply  to  rules,  regulations, 
and  orders  of  a  quasi-legislative  nature.6 

§  379.  Quo  warranto.  The  only  proceeding  by  which 
title  to  office  may  be  determined  is  quo  warranto,  or 
information  in  the  nature  of  quo  warranto.  (§  281.) 
Originally  this  was  a  prerogative  writ ;  later  it  became 
of  more  general  application,  and  was  criminal  in  form. 
Now  as  used  either  by  information,  or  according  to 
the  revised  practice  prescribed  in  enactments,  it  has 
lost  most  of  its  criminal  character,  and  is  practically 
an  action  by  which  an  imposter  may  be  ousted  from 
office.  Quo  warranto  will  not  lie  where  there  is  any 
other  remedy  applicable.7  So  where  by  statute  some 
other  method  is  provided  to  test  title  to  office,  that 
method  must  be  pursued.  Quo  warranto  proceedings 
are  ordinarily  brought  in  the  name  of  the  common- 
wealth, and  properly  by  the  attorney  general  or  a 
state's  attorney.  The  person  asking  leave  to  file  the 
information  must  show  that  he  has  some  interest  in 
the  matter  to  be  decided,  when  the  action  originates  in 
a  private  citizen,8  and  if  that  interest  is  the  claim  to 
the  office,  he  must  show  by  prima  facie  evidence  that 
he  has  a  title  thereto ; 9  but  the  interest  of  a  citizen  as 

s  McMillan     Co.     v.     Minnesota  s  Commonwealth    v.    Fowler,    10 

State  Board  of  Health,  110  Minn.  Mass.  290;  Commonwealth  v.  Wal- 
145.  ter,  83  Pa.  105. 

6  Nelson     v.     State     Board     of  9  State  v.  Dahl,  65  Wis.  510. 
Health,  186  Mass.  330. 

7  State  v.  Marlow,  15  Ohio,  114; 
State  v.  Wilson,  30  Kans.  661. 


LEGAL   REMEDIES  533 

a  taxpayer  is  sufficient.10  What  the  court  desires  is  to 
be  assured  that  the  relator  is  asking  in  good  faith, 
that  he  has  responsibility,  and  that  his  own  conduct 
has  been  such  that  he  has  not  become  disqualified  from 
making  the  complaint.  Aside  from  such  cases  in  which 
the  action  has  been  brought  by  the  attorney  general, 
acting  for  the  state,  the  issuance  of  the  writ  is  discre- 
tionary with  the  judge  having  jurisdiction.11 

Quo  warranto  is  the  proper  method  to  determine 
the  title  of  public  officers  only.12  Right  to  employment 
must  be  tried  by  other  means.13  Judge  Cooley  ex- 
pressed a  doubt  whether  the  proceedings  be  applicable 
to  any  office  not  created  by  the  state.14  Very  evidently, 
the  proceeding  is  not  proper  to  oust  a  federal  officer, 
although  the  office  be  filled  under  the  power  of  the 
state.15  And  the  courts  will  be  adverse  to  granting 
the  writ  when  the  term  of  the  officer  has  nearly  ex- 
pired,16 or  when  the  court  is  satisfied  that  if  seated 
the  relator  could,  and  would  be  immediately  removed.17 

It  is  necessary  that  the  party  against  whom  the 
information  is  filed  shall  be  in  actual  possession  of 
the  office,18  though  the  taking  of  the  oath  of  office 
may  be  sufficient  grounds,  and  action  will  be  admissible 
where  the  officer  has  abandoned  his  office.19 

10  Commonwealth  v.    Meeser,   44  i±  Throop  v.  Langdon,  40  Mich. 

Pa.  341;  State  v.  Hammer,  42  N.  673. 

J.  L.  435;  State  v.  Martin,  42  N".  "  State  v.  Bowen,  8  S.  C.  400; 

J.  L.  479.  Territory    v.    Lockwood,    3    Wall. 

ii  People  v.  Waite,   70   111.   25;  236. 
People  v.  Moore,  73  111.  132 ;  State  is  People  v.  Sweeting,  2  Johns, 

v.  Tolan,  33  N.  J.  L.  195;  State  v.  184;  State  v.  Jacobs,  17  Ohio,  143; 

Smith,  48  Vt.  266 ;  Commonwealth  State  v.  Tudor,  5  Day,  329. 
v.  Jones,  12  Pa.  365.  17  Ex  parte,  Richards,   3   Q.   B. 

12  State  v.  Hixon,  27  Ark.  398;  Div.  368. 
Cleaver  v.   Commonwealth,  34  Pa.  i8  King  v.  Whitwell,  5  T.  R.  85. 

283.  19  State    v.    Graham,    13    Kans. 

is  State  v.  North,  42  Conn.  79;  136;    People  v.  Callaghan,  83  111. 

Eliason  v.  Coleman,  86  N.  C.  235.  128. 


534  PUBLIC   HEALTH   ADMINISTRATION 

Quo  warranto  lies  to  oust  from  office  one  who  has 
set  up  an  office  without  warrant  of  law,20  or  when  the 
statute  under  which  he  holds  is  unconstitutional,21  or 
where  the  officer  has  failed  to  file  his  bond,  or  to  take 
his  oath.22  It  is  also  applicable  against  any  officer 
who  by  his  acts  has  forfeited  his  office,  and  in  such 
cases  it  is  not  necessary  to  show  that  any  other  person 
has  a  legal  title  thereto.23  "If  the  alleged  ground  for 
ousting  the  officer  is  that  he  has  forfeited  his  office 
by  reason  of  certain  acts  or  omissions  on  his  part, 
it  must  then  be  judicially  determined,  before  the 
officer  is  ousted,  that  these  acts  or  omissions  of  them- 
selves work  a  forfeiture  of  the  office.  Mere  miscon- 
duct, if  it  does  not  of  itself  work  a  forfeiture,  is  not 
sufficient.  The  court  has  no  power  to  create  a  for- 
feiture, and  no  power  to  declare  a  forfeiture  where 
none  already  exists.  The  forfeiture  must  exist  in  fact 
before  the  action  of  quo  warranto  is  commenced."24 
Where  the  action  is  to  oust  the  respondent,  and  install 
the  relator,  the  court  will  not  grant  the  application  if 
the  relator  has  concurred  in  the  holding,  acquiesced  in 
the  irregularities  of  which  he  complains,  or  delayed 
unreasonably  the  presentation  of  his  claims  to  the 
office.25 

20  Eex  v.  Boyles,  2  Stra.  836.  laghan,  83  111.  128;  Griebel  v.  State, 

2i  Atty.  Gen.  v.  Holihan,  29  Mich.  Ill  Ind.  369. 

116;   Dullam  v.  Willson,  53  Mich.  24  Commonwealth  v.   Walter,   83 

392.  Pa.  105;  Cleaver  v.  Commonwealth, 

22  In  re  Mayor  of  Penryn,  1  Stra.  34  Pa.   283 ;    Brady   v.   Howe,   50 
582.  Miss.    624;    State   v.    Graham,    13 

23  State  v.   Collier,   72   Mo.    13 ;  Kas.  136 ;   State  v.  Allen,  5  Kas. 
Comm.  v.  Walter,  83  Pa.  105;  State  213. 

v.  Graham,  13  Kas.  136;  People  v.  25  Reg.  v.  Green,  2  A.  &  E.  460; 
Bingham,  82  Cal.  238;  Osgood  v.  State  v.  Tipton,  109  Ind.  73;  Dor- 
Jones,  60  N.  H.  543 ;  Hyde  v.  sey  v.  Ansley,  72  Ga.  460 ;  Eeg.  v. 
State,  52  Miss.  665 ;  People  v.  Cal-  Anderson,  2  A.  &  E.  740. 


LEGAL   REMEDIES  535 

The  exact  steps  in  quo  warranto  proceeding  differ 
in  the  different  states.  In  general,  the  petition  is  filed 
by,  or  in  the  name  of,  the  attorney  general  or  the  prose- 
cuting attorney,  and  the  petition  should  show  with 
definiteness  the  name  and  existence  of  the  office,  and 
that  the  incumbent  holds  the  same  without  warrant  of 
law.  "The  people  are  not  required  to  show  any- 
thing. " 26  "  The  state  is  bound  to  make  no  showing. ' ' 27 
The  burden  of  proof  is  upon  the  respondent.  "The 
state  has  always  a  right  to  demand  of  any  one  assum- 
ing a  public  office  or  franchise  to  show  his  author- 
ity."28 It  is  not  enough  that  the  respondent  shall 
show  that  he  originally  held  the  office  rightfully,  but 
he  must  show  that  he  still  has  a  clear  title  thereto.29 
But  if  the  proceedings  be  to  oust  the  incumbent,  and 
to  seat  the  relator,  the  burden  of  proof  is  shifted  to 
the  relator,  and  he  must  show  his  lawful  title  to  the 
office.  In  such  cases  the  information  should  clearly 
state  the  fact  that  he  was  eligible,  and  properly  elected 
or  appointed.30  So  if  it  be  claimed  that  the  respond- 
ent has  forfeited  his  right  to  the  office  the  burden  of 
proof  is  shifted  to  the  state.31 

Unless  it  be  provided  by  the  statutes  of  the  indi- 
vidual state,  trial  by  jury  is  not  a  matter  of  right  in 
quo  warranto  proceedings,32  though  under  certain  cir- 
cumstances the  contrary  has  been  held.33 

The  judgment  may  simply  oust  the  incumbent,  or 

26  People  v.  Kidgely,  21  HI.  67.  si  People  v.   Thacher,   55  N.   Y. 

2T  People  v.  Mayworm,   5   Mich.  525. 

146,  32  State  v.  Johnson,  26  Ark.  281; 

28  People  v.  DeMill,  per  Cooley,  State  v.  Lupton,  64  Mo.  415;  State 
J.,  15  Mich.  164.  v.  Vail,  53  Mo.  97. 

29  State  v.  Graham,  13  Kans.  136.  33  State   v.   Allen,   5    Kas.    213 ; 
so  State  v.  Stein,  13  Neb.   529 ;       White  v.  Doesburg,  16  Mich.  133. 

State  v.  Boal,  46  Mo.  528. 


536  PUBLIC    HEALTH   ADMINISTRATION 

in  addition  to  the  ouster  it  may  install  the  relator. 
Unless  the  matter  be  covered  by  statutes  the  judgment 
will  not  include  the  assessment  of  damages  against  the 
usurper.  Action  for  damages  is  ordinarily  an  inde- 
pendent proceeding.34 

§  380.  Quo  warranto  not  to  restrain  official  excesses. 
Quo  warranto  is  practically  restricted  to  the  determina- 
tion of  title  to  office,  or  right  to  franchise.  It  will  not 
lie  to  restrain  a  lawful  officer  from  official  excesses, 
for  the  reason  that  there  are  other  actions  applicable. 
The  person  injured  may  bring  civil  suit  against  the 
officer  or  corporation.  If  the  officer  acts  without  legal 
warrant  he  will  be  held  personally  liable.  "If  that 
officer,  it  may  be  proved,  has  deviated  ever  so  little 
from  his  legal  authority,  if  with  the  best  of  intention, 
or  with  the  best  of  intelligence,  he  makes  a  mistake 
of  fact  in  applying  the  law  to  a  particular  case,  he  is 
by  the  principal  doctrine,  if  applied  to  its  logical  con- 
clusion, liable  as  a  private  wrong  doer  and  responsible 
in  such  damages  as  may  be  proved." 35  Also,  in  many 
cases  the  law  provides  for  appeal,  and  such  right  of 
appeal  would  take  the  preference  over  other  proceed- 
ings, and  as  we  have  said  in  Chapter  IV,  it  would 
be  well  if  the  right  to  appeal  within  executive  depart- 
ments be  more  generally  provided  in  statutory  enact- 
ments. But  if  there  be  no  right  of  appeal,  by  which 
official  excesses  could  be  restrained,  and  if  the  injury 
worked  would  be  irreparable,  and  where  no  other  ade- 
quate remedy  is  applicable,  an  injunction  will  lie.36 

§  381.  Recovery  of  books  and  property,  mandamus 
or  replevin.    Where  the  title  to  the  office  is  decided, 

34  People  v.  Miles,  2  Mich.  350.  se  Mobile  v.  Louisville,  &c.  K.  R. 

ssWyman  Ad.  Law,  15.  Co.,  84  Ala.  115. 


LEGAL   REMEDIES  537 

the  newly  installed  officer  may  recover  the  possession 
of  the  books,  records,  seals,  and  other  property  through 
mandamus?1  Eeplevin  will  not  ordinarily  lie  against 
a  public  officer,  but  replevin  will  lie  in  favor  of  a  public 
officer  against  one  who  has  wrongfully  taken  posses- 
sion of  the  property  of  the  office,  though  he  may  claim 
possession  as  having  been  duly  elected  or  appointed.38 
Also  when  the  action  is  brought  by  a  private  citizen 
claiming  title  for  books  or  other  property  deposited 
in  his  office,  the  only  remedy  is  mandamus,  not  re- 
plevin.39 Title  to  the  office  cannot  be  tried  either  in 
mandamus,  nor  in  replevin  proceedings.  The  title 
must  have  been  previously  decided.40 

§  382.  Writ  of  prohibition,  or  injunction.  The  writ 
of  prohibition  is  probably  never  applicable  to  a  health 
executive.  (§  281.)  The  writ  of  prohibition  is  an 
extraordinary  judicial  writ,  issuing  from  a  court  of 
superior  jurisdiction  "to  prevent  the  exercise,  by  a 
tribunal  possessing  judicial  powers,  of  jurisdiction 
over  matters  not  within  its  cognizance,  or  exceeding 
jurisdiction  of  matters  of  which  it  has  cognizance. " 41 
It  is  applicable  to  officers  having  quasi-judicial  powers, 
as  distinguished  from  discretionary  powers.42  It  does 
not  lie  to  restrain  executive  or  ministerial  action,  even 
where  such  action  requires  the  use  of  judgment  with 
discretion.43     It  does  not  lie  where   there  is   other 

37  People  v.   Head,  25  111.   325;  *i  Thomson  v.  Tracy,  60  N.   Y. 

McGee    v.    State,    103    Ind.    444;  31. 

Stone  v.  Small,  54  Vt.  498.  *2  Ex  parte  Braudlacht,  2   Hill, 

38Phenix  v.  Clark,  2  Mich.  327;  367;  Smith  v.  Whitney,  116  U.  S. 

Fletge  v.  Priest,  53  Mo.  540.  167;    LeConte  v.  Berkley,   57  Cal. 

39  People  v.  Treasurer,  24  Mich.  269. 

468 ;    Brent   v.   Hagner,    5   Cranch  *3  Seymour   v.    Almond,    75    Ga. 

C.  C.  71.  112;   State  v.  Columbia,   16   S.   C. 

*°Hallgren      v.      Campbell,      82  412;    LaCroix  v.   Fairfield  County 

Mich.  255.  Commissioners,      50      Conn.      321 ; 


538  PUBLIC    HEALTH   ADMINISTRATION 

remedy,  as  by  appeal,  or  certiorari*4  Nor  will  it  take 
the  place  of  quo  warranto  to  restrain  a  person  from 
attempting  to  assume  an  office.45  It  is  therefore  diffi- 
cult to  conceive  of  any  way  in  which  it  could  apply 
to  a  health  official,  though  it  might  be  used  with  ref- 
erence to  a  court  which  is  attempting  to  pass  upon 
some  problem  of  the  health  administration,  but  there 
only  where  the  court  has  no  jurisdiction,  or  where  it  is 
attempting  to  exceed  its  authority,  and  without  a  pos- 
sible remedy  by  appeal  or  otherwise. 

An  injunction,  on  the  other  hand,  is  applicable  to 
executive  officers  particularly,  to  prevent  excesses  in 
action.  Because  of  the  independence  of  the  judiciary 
from  the  executive  branch  of  government,  the  injunc- 
tion is  not  intended  in  any  way  to  restrain  legal  execu- 
tive action.46  It  will  not  be  used  to  direct,  nor  to 
restrain  the  exercise  of  discretionary  authority.  It 
may  be  used  to  restrain  action  which  will  destroy  prop- 
erty rights,  where  the  injury  is  irreparable.47  It  may 
be  used  to  prevent  the  taking  of  property,  or  impair- 
ment of  property,  as  in  the  draining  of  swamps,48  or 
in  the  creation  of  nuisances.49  It  may  also  be  used 
to  prevent  illegal  expenditures  of  money.50  In  no 
way  can  it  take  the  place  of  quo  warranto  to  try  the 

Burch  v.  Hardwieke,  23  Gratt,  51 ;  48  Belknap  v.  Belknap,  2  Johns. 

Manhattan  v.  Hassin,  105  Pac.  44.  Ch.  463. 

44  Shell  v.  Cousins,  77  Va.  328;  49  Upjohn  v.  Eiehland,  46  Mich. 
Smith  v.  Whitney,  116  U.  S.  167.  542 ;  Merrill  v.  Humphrey,  24  Mich. 

45  Buckner  v.  Veuve,  63  Cal.  304.  170. 

46  Whitman  v.  Hubbell,  20  Abb.  50  Cooley  on  Taxation,  2nd  Ed., 
N.  Cas.  385;  Sage  v.  Fifield,  68  764;  State  v.  County  Court,  51  Mo. 
Wis.  546.  350;  Drake  v.  Phillips,  40  111.  389; 

47  Mobile  v.  Louisville,  &c,  R.  E.  Leitch  v.  Wentworth,  71  HI.  147. 
Co.,  84  Ala.  115;  City  Council  v. 

Louisville,  &c,  R.  R.  Co.,  84  Ala. 
127. 


LEGAL   REMEDIES  539 

right  to  office,  neither  to  prevent  qualification,51  nor 
entering  the  office,52  nor  to  prevent  the  payment  of 
salary.53 

§  383.  Certiorari.  Because  of  the  independence  of 
the  judicial  and  the  executive  and  legislative  branches, 
it  is  not  the  province  of  the  courts  in  any  way  to  inter- 
fere with  the  legal  execution  of  the  duties  of  the  other 
branches.  (§281.)  Certiorari  therefore  does  not  lie 
to  correct  errors  in  the  use  of  discretionary  power, 
though  it  may  lie  against  an  executive  officer  holding 
quasi- judicial  powers  to  see  that  the  legal  forms  have 
been  properly  observed.54  It  will  not  lie  to  control 
the  exercise  of  ministerial,  purely  executive,  or  legis- 
lative duties.55  As  in  the  case  of  the  other  writs,  this 
will  not  lie  when  there  is  other  remedy  available. 

§  384.  Mandamus.  A  duty  which  is  ministerial  must 
be  performed.  The  function  of  the  ancient  preroga- 
tive writ  of  mandamus  is  to  compel  the  performance  of 
ministerial  duties,  whether  they  be  purely  so,  or  the 
ministerial  portion  of  discretionary  authority.  (§  281.) 
To  a  great  extent  it  has  lost  its  prerogative  character. 
In  many  regards  it  is  the  exact  antithesis  of  the  injunc- 
tion. "An  injunction  is  essentially  a  preventive 
remedy;  mandamus  a  remedial  one.  The  former  is 
usually  employed  to  prevent  future  injury,  the  latter 
to  redress  past  grievances.  The  functions  of  the 
injunction  are  to  restrain  motion  and  enforce  inaction; 

BiMoulton  v.  Reid,  54  Ala.  320.  388;  St.  Charles  v.  Rogers,  49  Mo. 

52  Beebe  v.  Robinson,  52  Ala.  66.  530. 

53  Stone  v.  Wetmore,  42  Ga.  601 ;  55  Atty.  Gen.  v.  Northhampton, 
Tappan  v.  Gray,  9  Paige,  507.  143  Mass.  589 ;   In  re  Wilson,  32 

s*  People    v.    Burnap,    38    Mich.  Minn.   145 ;    People  v.   Walter,  68 

350;  French  v.  Barre,  58  Vt.  567;  N.    Y.    403;    Supervisors   v.    Aud. 

Miller  v.   Supervisors,  88   111.   26;  Gen.,  27  Mich.  165. 
McGregor  v.  Supervisors,  37  Mich. 


540  PUBLIC    HEALTH   ADMINISTRATION 

those  of  mandamus  to  set  in  motion  and  compel  action. 
In  this  sense  an  injunction  may  be  regarded  as  a  con- 
servative remedy;  mandamus,  as  an  active  one.  The 
former  preserves  matters  in  statu  quo,  while  the  very 
object  of  the  latter  is  to  change  the  status  of  affairs, 
and  to  substitute  action  for  inactivity.  The  one  is, 
therefore,  a  positive  or  remedial  process,  the  other  a 
negative,  or  preventive  one. ' ' 56 

Mandamus  does  not  create  a  duty;  its  only  purpose 
is  the  enforcement  of  a  duty  already  existing.57  It 
cannot,  therefore,  be  used  to  enforce  a  doubtful  right, 
nor  to  compel  the  performance  of  a  duty  which  is  not 
clear  and  certain.58  For  the  purposes  of  the  writ  it  is 
presumed  that  he  who  occupies  an  office  does  so 
legally,  and  mandamus  will  therefore  lie  to  compel 
action  by  an  officer  de  facto,5®  but  by  disclaiming 
possession  of  the  office,  and  resigning  all  pretentions 
thereto,  he  will  be  under  no  criminal  or  civil  liability 
for  his  refusal  to  act.60  The  writ  will  not  lie  to  com- 
pel the  performance  of  an  illegal  act,61  nor  one  which 
is  impractical.62  Neither  will  it  lie  to  control  discre- 
tionary authority.63     "But  though  the  officer  vested 

se  High,  Extra  Legal  Kennedies,  eo  Olmsted  v.  Dennis,  77  N.  Y. 

6.  378;   Bentley  v.  Phelps,  27  Barb. 

57  Meadows   v.    Nesbit,    12    Lea,  524. 

489;  People  v.  Hatch,  33  111.  9.  ei  state  v.  Sneed,  9  Baxt.  272; 

ss  People  v.  Solomon,  46  111.  415;  People  v.  Hyde  Park,  117  111.  492; 

People  v.  Mayor,  51  111.  17;  People  Ex  parte  Fleming,  4  Hill,  581. 

v.  Hayt,  66  N.  Y.  606 ;   Cook  v.  62  People  v.  O  'Keef  e,  100  N.  Y. 

Peacham,  50  Vt.  231.  572. 

59  Kelly  v.   Wimberly,   61   Miss.  63  U.    S.    v.    Boutwell,    3    Mac- 

548;  State  v.  Fortenberry,  56  Miss.  Arthur,  (D.  C.)  172;  People  v.  Du- 

286 ;    State  v.   McEntyre,   3   Ired.  laney,  96  111.  503 ;  People  v.  Knick- 

(N.  C.)  171;  Runion  v.  Latimer,  6  erbocker,  114  111.  539;   Stanley  v. 

Rich.  126.  Monnet,  34  Kas.  703. 


LEGAL    REMEDIES  541 

with  discretion  will  thus  not  be  compelled  to  reach 
any  particular  conclusion,  he  cannot  refuse,  in  viola- 
tion of  his  duty,  to  act  at  all,  and  if  he  does,  mandamus 
may  be  resorted  to  to  compel  him  to  act, — to  take  what- 
ever action  is  necessary  as  a  preliminary  to  the  exercise 
of  his  discretion,  as  to  hear  a  claim,  or  entertain  the 
petition,  or  pass  upon  the  bond,  or  meet  to  confer,  or 
pass  upon  the  matter,  as  the  particular  case  may 
require. ' ' 64 

In  other  words,  it  is  the  province  of  the  courts  only 
to  see  that  the  laws  are  complied  with,  that  execu- 
tive officers  do  not  exceed  their  authority,  either  in 
manner  or  matter,  but  that  they  do  that  which  is  their 
official  duty.  There  is  in  such  judicial  regulation  no 
attempt  to  control  the  proper  exercise  of  any  executive 
action.  The  obligation  and  authority  for  such  matters 
rests  entirely  with  the  executive  officers;  but  this  also 
implies  that  the  executive  officers  shall  in  all  cases 
restrict  themselves  to  legal  methods  and  steps.  It 
implies  further,  that  they  shall  do  their  full  duty,  for 
the  sins  of  omission  may  be  quite  as  harmful  as  excess 
of  activity. 

64  Mechem,  Pub.  Off.  946,  citing 
cases. 


CHAPTER  XIII 

VITAL   STATISTICS 

§  385.  An   index    of    healthfulness.  §  390.  The  physician  a  witness. 

§386.  National  control?  §391.  Confidential   relationships. 

§  387.  State  organization.  §  392.  Morbidity  reports. 

§  388.  Completeness  of  returns.  §  393.  Tentative  reports. 
§  389.  Eecords  as  legal  evidence. 

§385.  An  index  of  healthfulness.  Vital  statistics 
have  sometimes  been  called  the  bookkeeping  of  a 
health  department.  The  death  rate  of  a  community  is 
its  index  of  health.  Where  a  community  has  an  unus- 
ually high  death  rate,  it  generally  shows  that  there  is 
something  wrong  in  the  health  administration.  This 
is  particularly  true  if  the  excess  rate  is  among  the 
infectious  diseases.  Not  only  the  death  rate,  but  the 
amount  of  sickness  in  a  community  is  an  important 
indication  as  to  the  efficiency  of  the  guardians  of  pub- 
lic health.  The  death  rate  of  infants  can  not  be  accu- 
rately gauged  unless  there  be  given  the  statistics  as 
to  birth  rate.  In  these  considerations  it  is  the  collec- 
tive statement  of  all  similar  individual  records  which 
is  the  basis  of  judgment.  Individual  records  of  birth, 
or  of  death,  or  of  illness,  have  little  independent  value 
for  the  health  department  except  in  cases  of  infectious 
disease.  To  say  that  vital  statistics  is  the  bookkeeping 
of  a  health  department,  therefore,  obscures  the  import- 
ant fact  that  the  records  upon  which  such  statistics 

542 


VITAL   STATISTICS  543 

are   based   are   of   great   value   in   entirely   different 
spheres  of  governmental  action. 

§  386.  National  control?  As  stated  in  Chapter  IX, 
(§  216-227.)  it  has  been  customary  to  leave  all  legis- 
lation relative  to  vital  statistics  to  state  governments, 
though  there  seems  to  be  a  good  reason  for  at  least 
suspecting  that  congress  may  have  jurisdiction  over 
the  matter.  Statistics  are  of  value  in  proportion  to 
their  quality;  and  quality  includes  the  idea  of  extent 
of  territory,  lack  of  omissions,  and  completeness  and 
accuracy  of  individual  reports.  Such  quality  cannot 
be  attained  unless  the  control  of  the  matter  be  cen- 
tralized as  much  as  possible.  If  one  state  adopts  a 
certain  classification  of  diseases,  differing  from  that 
used  by  the  others,  it  makes  comparisons  indefinite  and 
unsatisfactory.  In  death  reports,  some  states  ask  the 
last  occupation  of  the  deceased;  others,  as  favored  by 
the  bureau  of  census,  simply  inquire  as  to  his  occupa- 
tion. There  is  no  object  in  giving  the:  occupation 
unless  that  occupation  may  possibly  have  some  bear- 
ing upon  the  cause  of  the  illness.  A  stone-cutter,  or  a 
bookkeeper,  is  very  liable  to  contract  consumption; 
and  not  infrequently,  having  contracted  the  disease, 
the  patient  changes  his  occupation  and  seeks  employ- 
ment where  he  will  be  out-of-doors,  as  in  farming,  gar- 
dening, grocery  or  milk  delivery.  If  the  death  report 
gives  simply  the  general  occupation  as  stone-cutter 
or  bookkeeper,  that  helps  to  show  the  causative  rela- 
tion between  the  occupation  and  the  disease.  If,  on 
the  other  hand,  the  last  occupation  only  be  given,  and 
that  be  farming  or  gardening,  it  is  difficult  to  see  of 
what  possible  value  this  item  may  be.  A  report  of 
tubercular     illness,     giving     the     occupation     which 


544  PUBLIC   HEALTH   ADMINISTRATION 

requires  the  handling  of  food  material,  as  in  the  gro- 
cery or  milk  business,  would,  of  course,  be  a  valuable 
pointer  for  an  efficient  health  officer.  But  in  a  death 
report  the  item  would  be  misleading  under  the  sup- 
posed circumstances,  and  practically  valueless.  In 
order  to  secure  widest  uniformity,  therefore,  if  it  be 
legal  to  leave  the  control  of  vital  statistics  to  national 
legislation,  that  would  be  evidently  desirable. 

§387.  State  organization.  In  the  state  control  of 
vital  statistics,  it  is  important  that  registration  dis- 
tricts be  made  sufficiently  small  so  that  they  may  be 
administered  with  the  greatest  accuracy  and  the  least 
hardship.  If  districts  be  too  large,  reports  will  be 
slow  in  getting  into  the  local  registration  office;  and 
the  local  registrar  will  be  unable  of  his  own  knowledge 
to  judge  as  to  the  completeness  of  the  returns.  The 
local  registrars  should  be  appointed  by,  and  respon- 
sible to,  the  state  registrar.  Otherwise  it  will  be  impos- 
sible for  the  state  registrar  to  guard  the  local  effi- 
ciency. If  local  registrars  be  appointed  by,  and  receive 
their  pay  from,  municipalities,  though  the  state  reg- 
istrar may  be  satisfied  that  they  are  negligent  in  the 
performance  of  their  duty,  unless  there  be  a  gross 
malfeasance  in  office,  it  will  be  practically  impossible 
to  enforce  efficiency.  The  state  registrar  though  nom- 
inally the  head  of  the  department,  becomes  practically 
only  a  clerk,  collecting  and  combining  the  reports 
from  different  sections  of  his  territory.  Unfortunately, 
local  self-government  is  so  important  in  the  minds  of 
many  citizens,  that  such  surrender  of  local  registra- 
tion is  frequently  violently  opposed. 

§  388.  Completeness  of  returns.  The  law  requiring 
reports  should  not  permit  a  body  to  be  removed  from 


VITAL  STATISTICS  545 

the  place  of  death,  buried,  cremated,  or  otherwise  dis- 
posed of,  without  the  issuance  of  a  permit  from  the 
local  registrar.  Absolute  completeness  of  the  returns 
is  essential  for  the  value  of  mortuary  statistics;  and  if 
it  be  permitted  even  to  remove  a  body  from  a  hospital 
where  the  patient  died,  it  opens  the  way  for  neglect 
in  making  a  final  report.  In  this  insistence  upon  the 
issuance  of  a  permit  by  the  registrar  there  is  an  effi- 
cient check  upon  this  portion  of  the  work.  In  birth 
certificates,  on  the  other  hand,  no  such  check  is  pos- 
sible, but  the  law  should  insist  upon  an  immediate 
report  to  the  registrar's  office.  The  chief  duty  of 
making  these  reports  must  of  necessity  fall  upon  phy- 
sicians ;  and  physicians  as  a  class  do  not  appreciate  the 
importance  of  this  service.  The  consequence  is  that  if 
too  much  time  be  allowed  the  report  will  be  delayed 
always  "for  a  more  convenient  time"  until  the  phy- 
sician forgets  the  matter  entirely.  Such  reports  should 
be  rendered  by  the  physician  certainly  within  six  days 
even  though  the  report  be  incomplete. 

There  is  another  reason  for  insisting  upon  this 
early  report  of  cases  of  birth.  In  certain  sections, 
in  the  practice  of  certain  physicians,  and  among  cer- 
tain classes  of  patients  it  becomes  necessary  for  the 
health  department  to  be  on  its  guard  against  possible 
ophthalmia  neonatorum,  and  puerperal  septicaemia.  If 
the  report  be  not  promptly  made,  serious  harm  may 
occur  before  proper  precautions  are  taken.  Clearly, 
this  extra  supervision  on  the  part  of  the  health  depart- 
ment need  not  be  in  cases  in  which  the  physician  is 
both  careful  and  competent;  but,  in  order  to  catch 
other  cases  it  is  necessary  to  insist  upon  the  prompt 
report  by  all  physicians.    Death  reports  sometimes  are 


546  PUBLIC   HEALTH   ADMINISTRATION 

important  guides  for  the  health  executive  in  that  they 
point  out  the  presence  of  infection  previously  unsus- 
pected. It  therefore  is  apparent  that  there  is  a  decided 
advantage  in  having  the  registrar  connected  with  the 
local  health  service.  This  does  not  preclude  the 
appointment  by,  and  responsibility  to,  the  state  regis- 
trar of  vital  statistics,  especially  if  the  local  health 
officer  be  regarded  as  a  portion  of  the  state  service. 
In  practice  it  is  probable  that  appointment  by  the  state 
officer,  rather  than  by  local  government,  will  not  inter- 
fere with  the  appointment  and  retention  of  competent 
men  selected  from  the  immediate  neighborhood  and 
in  harmony  with  local  sentiment. 

§389.  Records  as  legal  evidence.  There  is  a  pos- 
sibility that  connecting  vital  statistics  with  a  health 
department  may  work  for  inefficiency.  As  previously 
intimated,  the  individual  records  of  births  and  deaths 
have  their  chief  value  not  as  guides  in  sanitation,  but 
as  evidence.  Eecords  of  death  or  copies  thereof  may 
be  needed  to  prove  heirship,  title  to  property,  right 
to  life  insurance ;  they  may  also  be  needed  in  criminal 
trials :  for  example,  a  man  may  be  charged  with  bigamy, 
and  the  record  of  the  death  of  his  former  wife  in 
another  state  may  be  all  that  is  necessary  to  acquit 
or  convict  him.  Records  of  birth  also  are  needed  to 
prove  heirship,  title  to  property,  citizenship,  and  such 
various  rights  as  may  be  dependent  upon  age,  such 
as  the  right  to  enter  a  profession,  to  vote  at  elections, 
to  be  married,  to  labor,  or  to  attend  school.  These 
records  may  also  be  needed  in  criminal  trials  to  prove 
the  responsibility  or  irresponsibility  of  the  participant 
in  a  crime.  The  record  of  a  girl's  birth  showing  that 
she  has  or  has  not  reached  the  age  of  consent  may 


VITAL   STATISTICS  547 

send  a  man  to  prison  or  may  free  him.  This  use  of  the 
certificates  of  birth  and  death  as  evidence  is  becoming 
more  and  more  important  every  year.  In  the  city  of 
New  York,  the  registrar 's  office  is  annually  called  upon 
for  more  than  forty  thousand  certificates  of  birth  to  be 
used  for  various  purposes.  In  some  countries  the  copy 
of  the  birth  certificate  is  absolutely  requisite  before 
a  person  may  be  legally  married.  Official  certificates 
of  birth  and  death  are  the  only  evidence  satisfactory 
in  probate  proceedings  in  some  nations.  In  conse- 
quence of  our  former  carelessness  in  this  matter,  our 
citizens  have  sometimes  been  put  to  great  inconven- 
ience, and  even  financial  loss.  After  the  death  of  a 
father  and  of  the  physician  who  was  in  attendance  at 
the  birth  of  a  girl  in  Indiana,  a  relative  of  the  father 
died  in  Switzerland,  leaving  property  to  which  this 
little  Indiana  girl  was  the  heir.  But  the  Swiss  govern- 
ment demanded  in  proof  of  heirship  official  copies  of 
birth  and  death  reports.  Such  reports  had  not  been 
made  nor  recorded,  and  in  consequence  the  child  was 
left  in  poverty,  and  the  property  went  to  more  distant 
heirs.  Because  the  physician  in  attendance  was  dead, 
it  was  impossible  to  get  his  testimony,  and  therefore 
it  was  impossible  to  get  evidence  satisfactory  to  the 
Swiss  government.  In  another  case  in  Indiana,  a 
grandfather  died,  leaving  his  property  to  the  grand- 
daughter to  be  acquired  when  she  was  of  age,  pending 
which  time  it  was  to  be  in  charge  of  her  father,  who 
did  not  have  the  reputation  of  being  a  good  manager  of 
funds.  When  the  young  lady  claimed  her  property, 
her  father  denied  her  claim,  stating  that  she  lacked  as 
yet  two  years  of  being  of  legal  age.  There  was  no 
official  record  of  her  birth;  that  page  from  the  family 


548  PUBLIC   HEALTH   ADMINISTRATION 

Bible  had  been  torn  out.  No  other  item  of  record 
directly  connected  with  the  birth  of  the  young  lady 
was  obtainable.  At  last  one  of  the  neighbors  remem- 
bered that  upon  the  same  day  that  the  little  girl  was 
born  a  valuable  cow  belonging  to  the  grandfather  had 
dropped  a  calf;  and  remembering  the  old  gentleman's 
methodical  care,  search  was  made  in  his  farm  books, 
and  the  birth  of  the  calf  was  there  found  recorded. 
Upon  this  record  of  the  birth  of  a  calf  the  court 
awarded  the  young  lady  her  property.  Such  a  round- 
about proof  would  not  always  be  either  possible  to 
obtain,  nor  acceptable  in  judicial  proceeding. 

It  is  possible  that  because  of  the  ordinary  connec- 
tion between  the  records  in  vital  statistics  and  depart- 
ments of  health  even  judges  may  have  been  misled  in 
decisions.  Many  of  the  items  in  a  birth  report,  for 
example,  have  little  or  no  value  for  the  health  admin- 
istrator. The  name  and  occupation  of  the  child's 
father,  as  well  as  his  age,  are  only  of  indirect  interest, 
but  in  proof  of  heirship  those  records  are  of  greatest 
importance.  The  certificate  of  birth  must  positively 
identify  the  child  by  sex  and  color.  As  soon  as  pos- 
sible the  name  of  the  child  should  be  recorded.  The 
record  should  further  give  the  ordinary  residence  of 
the  mother  and  the  place  of  the  child's  birth,  the  date 
of  the  birth,  the  name  of  the  father,  his  nativity,  occu- 
pation, and  age,  the  mother's  age,  her  maiden  name, 
and  nativity.  It  should  also  state  the  number  of  previ- 
ous children  which  this  mother  has  borne  and  how 
many  of  them  may  still  be  living.  Not  a  single  item 
can  be  omitted  from  such  a  report  without  weakening- 
it  as  documentary  evidence  in  probate  proceedings. 
A  state  law  in  Ohio  providing  for  registration  of  births 


VITAL   STATISTICS  549 

directed  that  the  physician  in  attendance  upon  the 
birth  of  the  child,  must  make  such  a  full  report  as 
above  indicated,  and  if  any  item  be  omitted  without 
satisfactory  explanation  being  given,  the  physician 
should  be  deemed  guilty  of  a  misdemeanor  and  pun- 
ished accordingly.  The  supreme  court  held  1  that  the 
act  was  unconstitutional  and  void,  being  an  unreason- 
able and  arbitrary  exercise  of  police  power.  As  a  use 
of  police  power  it  clearly  would  be  arbitrary,  but  as 
legislation  providing  for  the  presentation  and  preser- 
vation of  evidence  it  is  neither  unnecessary,  unreason- 
able, nor  arbitrary.  This  use  of  the  certificate  appar- 
ently did  not  occupy  the  attention  of  the  court. 

In  order  to  appreciate  the  importance  of  birth  and 
death  records  as  evidence,  let  us  suppose  a  case.  John 
Doe  and  his  wife  came  to  Chicago  from  England,  with 
their  infant  son  George,  only  a  few  months  old.  Arriv- 
ing in  Chicago  in  1866,  both  parents  were  soon  fatally 
stricken  by  the  cholera;  their  baby  was  taken  by  Rich- 
ard Roe  and  wife,  who  had  previously  lost  all  of  sev- 
eral children  in  infancy.  Shortly  thereafter  another 
boy,  whom  we  will  call  Charles,  was  born  into  the  Roe 
family.  This,  we  will  suppose  was  their  last  child :  and 
soon  after  his  birth,  George  Doe  died.  Some  forty 
years  afterward  Richard  Roe  and  his  wife  also  die, 
leaving  considerable  property.  Whether  honestly  or 
with  malice,  in  order  to  obtain  this  property,  brothers 
of  Richard  Roe  set  up  the  claim  that  the  man  who 
claims  to  be  the  real  son  of  Richard  Roe  was,  in  fact, 
George  Doe,  and  not  Charles  Roe;  and  that  the  last 
child  of  the  Roes  died  like  his  brothers  and  sisters  in 

i  State  v.  Boone,  95  N.  E.  924, 
84  Ohio,  346. 


550  PUBLIC   HEALTH   ADMINISTRATION 

infancy.  The  death  of  the  Doe  parents,  leaving  a 
helpless  babe,  would  naturally  impress  neighbors; 
while  the  death  of  a  babe  would  be  less  likely  to  attract 
their  attention  and  memory.  Their  testimony  would 
therefore  aid  the  contestants.  George  Doe,  having 
been  born  in  England,  was  there  properly  recorded,  so 
that  it  would  be  easy  to  prove  from  legal  record  that 
there  was  one  George  Doe.  Neither  birth  nor  death 
records  having  been  recorded  in  Chicago  in  1866,  no 
such  records  would  be  available  in  this  case;  and  we 
will  presume  that  any  records  which  the  family  might 
have  had  were  destroyed  by  the  fire  of  '71.  The  most 
important  witness  as  to  the  birth  of  the  Roe  children 
and  as  to  the  deaths  in  question  would  be  the  physician. 
Who  that  physician  might  have  been,  Charles  Roe 
would  probably  not  know,  and  the  probabilities  also 
would  be  that  he  too  was  dead  before  his  testimony 
was  needed.  The  fact  that  his  birth  was  not  legally 
recorded  would  therefore  work  great  injury  upon 
Charles  Roe,  and  possibly  deprive  him  of  his  property. 
On  the  other  hand,  exactly  the  same  conditions  might 
enable  this  Roe  heir  to  unjustly  claim  property  in 
England,  to  which  George  Doe  might  have  been 
entitled,  had  he  lived. 

§  390.  The  physician  a  witness.  When  a  physician 
accepts  the  care  of  a  case  he  thereby  enters  into  a  con- 
tract with  the  parties  interested  to  use  reasonable  and 
ordinary  care  in  the  treatment  of  the  case  committed 
to  him.2  It  is  particularly  those  who  are  unable  to 
protect  their  own  interests,  for  whom  the  state  assumes 
responsibility.    Now  the  care  of  a  confinement  case 

2  Barnes  v.  Means,  82  111.  379; 
Quinn  v.  Donovan,  85  111.  194. 


VITAL   STATISTICS  551 

naturally  includes  making  a  legal  record  of  the  birth 
of  the  child,  thus  protecting  its  possible  interests.  This 
certainly  is  true  in  states  providing  for  such  legal  reg- 
istration by  returns  made  by  the  attending  physician. 
He  is  the  most  important  witness  in  the  case  because, 
though  disinterested,  he  is  in  the  best  position  for 
knowing  the  facts.  This  is  one  of  the  reasons  why  a 
physician  is  employed  in  such  cases,  and  the  statement 
of  a  New  York  court,  though  made  with  a  different 
point  in  view,  is  equally  applicable  here,  when  it  held 
that  the  physician  ''will  use  reasonable  and  ordinary 
care  and  diligence  in  the  exercise  of  his  skill  and  the 
application  of  his  knowledge  to  accomplish  the  pur- 
pose for  which  he  is  employed."3 

Physicians  have  sometimes  objected  to  making 
reports  of  births  and  deaths  unless  they  be  paid  fees 
therefor,  and  such  fees  are  sometimes  provided  by  the 
state  statute.  In  the  absence  of  such  statutes  appar- 
ently there  is  no  ground  for  such  contention;  and  the 
provision  for  fees  may  interfere  with  securing  such 
reports  because,  as  in  Illinois  where  the  statute  pro- 
vides that  the  fee  should  be  paid  by  the  county,  appro- 
priations may  not  be  made  to  cover  the  expense.  Where 
the  statute  provides  for  such  fees  and  no  appropria- 
tion is  made  by  the  county  board,  whose  duty  it  is, 
physicians  may  with  more  justice  feel  reluctant  about 
making  reports.  However,  the  statute  makes  it  the 
duty  of  the  physician  to  report.  The  failure  of  the 
county  board  to  make  the  appropriation  does  not  in  the 
least  lessen  this  duty  of  the  physician.    If  he  be  not 

s  Carpenter  v.  Blake,  10  Hun,  86  Main,  414;  McNevins  v.  Lowe, 
358;  see  also  Kuhn  v.  Brownfield,  40  111.  209;  Craig  v.  Chambers,  17 
34  W.  Va.  252;  Cayford  v.  Wilbur,      Ohio,  253. 


552  PUBLIC   HEALTH   ADMINISTRATION 

paid,  he  is  entitled  to  a  recovery  of  fees  earned,  by 
proper  legal  action.  It  may  very  properly  be  held  that 
the  physician  is  paid  for  these  reports  when  he  receives 
his  pay  for  attending  the  case.  The  fact  that  he  may 
not  have  been  paid  by  his  patient  does  not  decrease 
his  responsibility  in  the  matter.  Mr.  Justice  Pryor,  in 
a  suit  for  malpractice,  made  this  statement:4  "It 
appears  that  the  plaintiff  was  a  charity  patient;  that 
defendant  was  treating  her  gratuitously.  But  I  charge 
you  that  this  fact  in  no  respect  qualifies  the  liability 
of  the  defendant.  Whether  the  patient  be  a  pauper 
or  a  millionaire,  whether  he  be  treated  gratuitously  or 
for  reward,  the  physician  owes  him  precisely  the  same 
duty  and  the  same  degree  of  skill  and  care.  He  may 
decline  to  respond  to  the  call  of  a  patient  unable  to 
compensate  him;  but  if  he  undertakes  the  treatment 
of  such  a  patient,  he  cannot  defeat  a  suit  for  malprac- 
tice, nor  mitigate  a  recovery  against  him,  upon  the 
principle  that  the  skill  and  care  required  of  a  physician 
are  proportionate  to  his  expectation  of  pecuniary 
recompense.  Such  a  rule  would  be  of  the  most  mis- 
chievous consequence;  would  make  the  health  and  life 
of  the  indigent  the  sport  of  reckless  experiment  and 
cruel  indifference.  Even  though,  therefore,  the  de- 
fendant was  not  to  be  paid  for  his  attendance,  he  was 
still  bound  in  law  to  treat  the  plaintiff  with  the  requi- 
site skill  and  requisite  care."  In  McNevens  v.  Lowe,5 
it  was  also  held  that  the  fact  that  services  are  gratui- 
tous in  no  respect  qualifies  or  diminishes  the  degree  of 
care  due  in  the  treatment  of  the  case. 
In  making  reports  of  sickness,  birth,  or  death,  for 

*  Becker  v.  Janiski,  27  Abb.  N.  s  40  HI.  209. 

C.  45. 


VITAL   STATISTICS  553 

legal  record,  the  physician  is  simply  giving  his  testi- 
mony for  the  benefit  of  society.  As  in  the  case  of  infec- 
tious diseases  it  may  be  for  the  protection  of  the  com- 
munity in  general  as  a  health  measure.  Certificates  of 
birth  and  death  are  chiefly  of  value  as  evidence  in 
various  forms  of  legal  procedure  and  for  the  interest 
of  individual  citizens,  many  of  whom  will  be  absolutely 
unknown  by  the  physician.  Such  evidence  very  fre- 
quently is  of  great  financial  importance  many  years 
after  the  event  recorded  has  taken  place,  and  often 
after  the  death  of  the  physician  witness.  It  seems, 
therefore,  best  that  a  little  space  be  given  to  the  con- 
sideration of  this  most  important  duty  on  the  part  of 
physicians. 

Dean  Wigmore,  in  his  "On  Evidence,"  says,6 
"For  three  hundred  years  it  has  been  recognized 
as  a  fundamental  maxim  that  the  public  (in  the 
words  sanctioned  by  Lord  Hardwicke)  has  a  right  to 
every  man's  evidence.  We  may  start  in  examining 
the  various  claims  of  exemption,  with  the  primary 
assumption  that  there  is  a  general  duty  to  give  what 
testimony  one  is  capable,  of  giving,  and  that  any 
exemptions  which  may  exist  are  distinctly  excep- 
tional and  are  so  many  derogations  from  a  positive 
general  rule."  Willes,  J.,  in  Ex  parte  Fernandis, 
says,7  "Every  person  in  the  kingdom,  except  the 
sovereign,  may  be  called  upon  and  is  bound  to  give 
evidence  to  the  best  of  his  knowledge  upon  any  ques- 
tion of  fact,  material  and  relevant  to  an  issue  in  any 
of  the  Queen's  courts,  unless  he  can  show  some  excep- 
tion in  his  favor."  Also  Chief  Justice  Tilghman 
said:8  "The  general  welfare  will  be  best  promoted  by 

6  2192.  sBaird  v.   Cochran,  4  S.  T.  E. 

v    1 10  C.  B.  N.  S.  339.  397,  400. 


554  PUBLIC    HEALTH   ADMINISTRATION 

considering  the  disclosure  of  truth  as  a  debt  which 
every  man  owes  to  his  neighbor,  which  he  is  bound  to 
pay  when  called  on,  and  which  in  his  turn  he  is  entitled 
to  receive. ' '  Physicians  are  called  upon  by  the  statute 
to  give  their  testimony  as  to  the  facts  within  their 
knowledge  by  making  legal  returns  of  vital  statistics. 
This  knowledge  is  not  their  private  property,  but  it  is 
the  property  of  the  community  which  the  physician  is 
simply  holding  in  trust.  In  an  early  case  in  Wiscon- 
sin, Mr.  Justice  Smith  made  this  statement : 9  "Inno 
just  sense  can  the  requisition  upon  a  citizen  of  his 
attendance  upon  court  to  testify  as  a  witness  be  con- 
sidered as  a  taking  of  private  property  for  public  use 
within  the  meaning  of  the  Constitution."  In  an  Illi- 
nois case,10  under  this  general  reasoning,  the  court 
forced  execution  of  a  new  deed  by  the  heir  of  the 
grantor  to  replace  one  which  had  been  lost.  Physicians 
are  citizens  and  members  of  the  community,  and  as 
such  owe  certain  duties  to  the  community.  Again 
quoting  Mr.  "Wigmore : "  "In  the  first  place,  it  may 
be  a  sacrifice  of  time  and  labor,  and  thus  of  ease,  and 
of  profits,  of  livelihood.  This  contribution  is  not  to 
be  regarded  as  a  gratuity,  or  a  courtesy,  or  an  ill- 
requited  favor.  It  is  a  duty,  not  to  be  grudged  or 
evaded.  Whoever  is  impelled  to  evade  or  resent  it, 
should  retire  from  the  society  of  ordinary  civil  com- 
munities, and  become  a  hermit.  He  is  not  a  desirable 
member  of  society.  He  who  will  live  by  society  must 
let  society  live  by  him,  when  it  requires  to."  And 
further,  "Prom  the  point  of  view  of  society's  right 
to  our  testimony  it  is  to  be  remembered  that  the 

s  West  v.  State,  1  Wise.  209-233.  «  Loc.  Cit. 

io  Bennett  v.  Walker,  23  111.  97. 


VITAL  STATISTICS  555 

demand  comes,  not  from  any  one  person  or  set  of  per- 
sons, but  from  the  community  as  a  whole — from  jus- 
tice as  an  institution,  and  from  law  and  order  as  indis- 
pensable elements  of  civilized  life. ' ' 

§391.  Confidential  relationships.  In  several  states 
statutes  have  been  passed  making  the  relation  between 
physician  and  patient  confidential.  How  far  such 
statutes  may  operate  to  prevent  physicians  from  mak- 
ing the  returns  in  vital  statistics  may  be  a  matter  of 
question.  Apparently  such  a  relationship  would 
excuse  physicians  from  making  reports  of  infectious 
diseases,  or  possibly  from  making  reports  of  deaths, 
unless  the  vital  statistics  statute  expressly  waived  the 
operation  of  the  general  statute  of  privilege. '  The 
same  might  possibly  be  held  relative  to  the  returns  of 
certain  birth  reports  under  peculiar  circumstances.  If 
our  interpretation  be  correct  that  the  statutory 
requirement  of  birth  and  death  reports  forms  a  part 
of  the  necessary  care  of  the  patient  and  his  interests, 
it  would  seem  probable  that  the  general  privilege 
should  not  operate  to  prevent  making  such  reports ;  for 
the  interests  of  the  heirs  of  the  deceased,  or  of  a 
child  born  of  a  parturient  woman,  would  legally  be 
considered  as  the  same  as  those  of  the  principle  in 
the  case. 

§  392.  Morbidity  reports.  Morbidity  reports  are  of 
interest  almost  solely  for  health  administration. 
(§  410.)  Industrial  accidents  have  a  close  relationship 
with  commercial  activities,  and  though  they  may  be  of 
interest  in  health  administration,  they  are  more  likely 
to  be  collected  by  other  departments  of  government. 
General  morbidity  reports  are  extremely  difficult  to 
get  under  our  plan  of  government,  and  as  a  rule  they 


556  PUBLIC   HEALTH   ADMINISTRATION 

are  inaccurate.  For  many  years  the  Michigan 
state  board  of  health  weekly  received  reports  from  cor- 
respondents in  different  parts  of  the  state,  giving  lists 
of  the  diseases  prevalent  and  their  relative  prominence. 
Of  necessity,  such  reports  must  be  made  largely  from 
the  impression  of  the  reporter.  Nevertheless,  even 
these  imperfect  records  were  of  value  as  showing  the 
relationship  of  individual  diseases  to  atmospheric  and 
other  conditions.  Such  reports  and  records  must 
depend  upon  the  voluntary  cooperation  of  those  inter- 
ested rather  than  upon  statutory  enactment. 

In  order  that  a  health  department  may  be  able  to 
take  the  necessary  steps  to  protect  the  community  from 
infectious  disease  it  is  necessary  that  it  be  given  notice 
of  an  infection  at  the  earliest  possible  moment. 
(§§32,  410.)  It  is  therefore  quite  customary  that 
statutes  and  ordinances  require  physicians  in  attend- 
ance upon  such  cases  to  make  such  reports.  In  this 
day  of  the  telephone  it  would  be  best  that  such  reports 
be  made  at  once  by  telephonic  communication,  or  that 
the  physician  call  personally  at  the  health  department. 
There  should  also  be  a  notice  in  writing  as  by  post 
card  unless  the  physician  have  evidence  that  a  verbal 
notice  has  been  properly  received,  recorded,  and  acted 
upon.  Unless  the  report  be  made  promptly  it  may 
not  be  received  in  time  to  be  of  service.  A  delay  of 
eight  days,  by  the  attending  physician  in  making  a 
report  of  a  case  of  diphtheria  to  the  proper  health  offi- 
cer is  unreasonable.12  It  seems  to  us  that  a  delay  of 
twenty-four  hours  after  making  a  diagnosis  in  such  a 
case  should  be  regarded  as  unreasonable,  unless  the 
means  of  communication  be  difficult. 

12  People  v.  Brady,  90  Mich.  459. 


VITAL   STATISTICS  557 

Statutes  requiring  reports  of  infectious  diseases 
generally  specify  certain  diseases  and  add  a  blanket 
provision,  such  as, ' '  or  other  disease  dangerous  to  pub- 
lic health."  In  such  a  statute  it  was  held  that  the 
clause  includes  and  covers  cases  of  consumption,  if 
consumption  is  in  fact  a  disease  dangerous  to  the  pub- 
lic health.13  To  make  such  a  decision  effective  the 
health  department  would  be  required  to  show  that  con- 
sumption is  dangerous  to  the  public  health.  Now  in 
one  case  the  court  might  be  satisfied  with  evidence 
showing  that  that  individual  case  was  dangerous  in 
fact  to  the  neighbors.  In  another  case,  the  court  might 
desire  evidence  that  consumption  generally  is  a  menace 
to  the  community.  In  still  another,  the  court  might  be 
satisfied  with  nothing  less  than  proof  that  consump- 
tion is  always  a  menace  to  the  community,  as  is  yellow 
fever.  Consumptives  may  be  considered  as  nuisances 
in  posse.  Those  who  have  dealt  much  with  the  dis- 
ease know  that  the  danger  to  the  community  lies  not 
so  much  in  the  seriousness  of  the  illness  as  in  the  care 
and  habits  of  the  patient.  Many  of  these  cases  are  not 
themselves  of  serious  menace  to  the  community 
because  of  the  intelligent  care  with  which  the  patients 
destroy  all  their  discharges.  Even  such  cases  should 
be  reported  to  the  health  department  in  order  that  the 
office  may  be  able  to  trace  doubtful  cases  and  make 
sure  that  necessary  precautions  are  taken.  The  respon- 
sibility for  guarding  the  community  must  rest  with  the 
health  department ;  it  cannot  be  shifted  to  private  indi- 
viduals. On  the  other  hand,  the  health  department 
should  not  be  held  responsible  if  it  be  not  furnished 

13  People  v.   Shurley,  131  Mich. 
177. 


558  PUBLIC    HEALTH   ADMINISTRATION 

either  the  direct  evidence  or  sufficient  funds  to  employ 
adequate  aid  to  make  frequent  inspections  of  every 
person  in  the  community,  and  thus  not  miss  a  single 
case.  Because  of  its  lessened  degree  of  infectiousness, 
it  is  not  necessary  that  reports  of  such  a  disease  as  con- 
sumption be  made  so  promptly  as  should  be  expected, 
for  such  diseases  as  diphtheria,  scarlet  fever,  yellow 
fever,  and  other  acute  infections.  Statutes  should 
therefore  stipulate  a  very  short  limit  of  time  for  report- 
ing cases  of  acute  infections,  though  they  might  allow 
a  longer  period  for  those  less  acute. 

There  is  no  common  law  obligation  upon  any  class 
to  report  cases  of  infectious  diseases  to  the  officers  of 
government.  The  duty,  and  the  manner  in  which  it 
must  be  executed  must  be  specified  either  by  statute, 
or  under  the  statute  by  ordinance,  rule,  or  regulation. 
This  duty  is  generally  imposed  upon  physicians,  and 
an  ordinance  so  providing  was  held  valid  in  Connecti- 
cut. The  unequality  of  burden  of  which  the  defend- 
ant complains  is  only  in  seeming.  Persons  offering 
their  services  to  the  public  as  healers  of  disease,  and 
requiring  pecuniary  compensation  therefor,  thereby 
assert  their  ability  to  detect  the  presence  of  it  when 
the  great  mass  of  the  people  can  not.  The  people 
accede  to  the  truth  of  their  assertion,  and  in  the  matter 
of  life  surrender  themselves  to  their  keeping.  Of 
course  an  ordinance  in  the  interest  of  life  must  detect 
the  presence  of  a  fatal  contagious  disease  at  the 
earliest  possible  moment.  Therefore,  with  impartial 
action  it  compels  that  member  of  the  community  who 
is  the  first  to  have  sight  and  knowledge  of  it  to  give 
note  of  warning  to  others  from  whom  its  presence  is 
hidden.     It  would  be  idle  to  require,  indeed  it  would 


VITAL   STATISTICS  559 

be  dangerous  to  accept,  this  service  from  those  who 
can  not  see  or  do  not  know.  The  burden  is  made  to 
rest  upon  every  member  of  the  only  class  which  is 
in  a  condition  to  contribute  anything  to  the  accom- 
plishment of  the  purpose  of  the  ordinance.14  "This 
is  his  duty  as  a  surgeon,  and  is  imposed  as  an  obliga- 
tion by  the  ethics  of  the  useful  and  honorable  profes- 
sion of  which  he  is  a  member,"  as  well  as  by  the 
statute  of  the  state  of  Iowa.15  In  a  case  in  the  Dis- 
trict of  Columbia  it  was  held  that  a  physician  in 
charge  of  a  charitable  dispensary  at  which  contagious 
diseases  were  not  treated,  who,  after  examining 
a  child  brought  to  the  hospital  for  treatment, 
diagnosed  the  case  as  one  of  diphtheria,  re- 
fused to  prescribe  but  suggested  that  the  child 
be  taken  home  and  isolated  and  that  a  physician 
be  called,  was  not  obligated  to  report  such  case  of 
sickness  to  a  degree  that  he  was  punishable  for  neglect- 
ing so  to  do.16  This  decision  is  unfortunate.  The  law 
of  the  District  provides,  29  Stats.  635,  Sec.  2,  "  Every 
physician  attending  on  or  called  in  to  visit,  or  exam- 
ining any  case  of  contagious  disease  in  the  District  of 
Columbia,  shall  immediately"  isolate  and  report  the 
case.  It  would  seem  that  this  wording  would  cover 
the  case  in  question.  It  is  just  such  cases  which  espe- 
cially need  to  be  detected.  The  patrons  of  dispen- 
saries are  very  apt  to  keep  infectious  diseases  hidden 
as  long  as  possible,  in  order  not  to  run  a  risk  of  exclu- 
sion from  ordinary  occupations.  The  fact  that  he  was 
in  charge  of  a  dispensary  should  indicate  that  the 

i4  State  v.  Worden,  14  At.  801.  ie  Johnson  v.  District  of  Colum- 

15  Robinson  v.  Hamilton,   14  N.      bia,  27  App.  D.  C.  259. 
W.  202. 


560  PUBLIC   HEALTH   ADMINISTRATION 

doctor  was  unusually  well  versed  upon  the  legal 
requirements  of  such  cases.  While  he  was  under  no 
obligation  as  to  treatment,  it  seems  that  he  should 
have  been  held  very  strictly  responsible  for  the  prompt 
reporting  of  the  case,  in  order  that  it  might  be  prop- 
erly watched.  In  the  state  of  Missouri  it  was  held 
that  a  christian  scientist  believing  that  disease  is  a 
delusion  of  the  mind,  and  teaching  the  sick  such  theory 
is  not  a  physician  who  can  be  subjected  to  the  penalty 
for  failing  to  report  a  contagious  disease.17  In  State 
v.  Boone,18  although  it  was  held  that  a  vital  statistics 
statute  was  unconstitutional  because  it  was  an  un- 
necessary and  arbitrary  use  of  police  power,  in  that  it 
required  the  physician  to  secure  and  file  certain  infor- 
mation relative  to  births  purely  for  statistical  pur- 
poses, or  for  governmental  record,  the  court  expressed 
a  doubt  whether  the  statute  could  be  considered  uncon- 
stitutional simply  because  it  failed  to  provide  for  com- 
pensation to  the  physician  making  the  report. 

§393.  Tentative  reports.  It  should  be  understood 
and  even  provided  according  to  law,  that  cases  of 
acute  infections  be  promptly  reported  as  soon  as  sus- 
pected without  waiting  for  confirmation  of  a  diagnosis. 
Two  forms  of  reports  should  be  provided — one  tenta- 
tive and  the  other  positive.  The  very  early  reports 
in  an  explosive  epidemic  are  of  immense  importance, 
and  the  very  fact  of  receiving  simultaneously  a  num- 
ber of  suspect  notices  will  often  in  effect  make  the 
diagnosis  sure.  It  is  impossible,  for  example,  for  a 
physician  to  make  a  definite  diagnosis  of  scarlet  fever 
at  his  very  first  call,  or  of  diphtheria,  until  after  he 

17  Kansas  City  v.  Baird,  92  Mo.  is  84  Ohio,  346. 

App.  204. 


VITAL   STATISTICS  561 

lias  had  a  bacterial  examination  of  a  throat  smear.  An 
explosive  epidemic  is  generally  due  to  a  contamina- 
tion of  food  or  water  supply:  the  morbific  agents  have 
generally  been  at  work  for  a  few  days  before  a  case  is 
discovered.  A  delay  of  twenty-four  hours  in  arousing 
the  suspicion  of  the  health  department  will  probably 
result  in  a  large  increase  in  the  number  of  cases. 

By  statutory  enactment  it  is  customary  to  impose 
the  duty  of  making  reports  of  births,  deaths,  and  cases 
of  infectious  diseases,  not  only  upon  physicians,  but  in 
varying  degree  that  duty  devolves  upon  heads  of  fami- 
lies and  others  having  responsibilities  relative  to  the 
particular  case.  They  may  even  make  such  demands 
upon  keepers  of  boarding  houses  or  lodging  houses  in 
which  a  case  of  infectious  disease  may  be  discovered. 
Since  this  duty  of  making  reports  is  general,  no  fee 
or  other  compensation  need  necessarily  be  provided 
by  the  governmental  body.19  Primarily  in  all  these 
cases  the  duty  of  making  the  report  falls  upon  the 
physician  if  one  be  employed.  Other  requisitions  sim- 
ply become  effective  in  the  failure  of  the  physician  to 
act. 

is  Sears  v.   Gallatin   County,  20 
Mont.  462,  40  L.  E.  A.  405. 


Part  II 
Special  Subjects 


PROLOGUE 

§  400.  Heretofore  we  have  discussed  general  prin- 
ciples pertaining  to  the  governmental  restraint  upon 
the  spread  of  disease,  and  the  prevention  of  mortality. 
In  the  remainder  of  the  book  attention  will  be  devoted 
to  special  subjects,  with  notations  upon  judicial  deci- 
sions. Because  of  the  fact  that  the  science  of  pre- 
vention really  may  be  said  to  have  begun  in  1898,  it 
very  naturally  follows  that  in  these  special  subjects 
many  decisions  will  be  found  under  the  old  regime 
which  would  hardly  be  applicable  under  our  revised 
ideas,  but  those  decisions  still  stand  of  record,  and 
divergence  from  the  principles  therein  laid  down  must 
be  based  upon  definite  facts  of  science.  Not  only  has 
the  science  changed  but  the  industrial  and  commer- 
cial conditions  have  changed  also.  That  which  would 
not  have  been  specially  dangerous  a  hundred  years 
ago,  even  according  to  present  scientific  knowledge, 
would  now  be  potent  for  harm,  because  of  the  socio- 
logic,  industrial,  and  commercial  changes.  On  the  con- 
trary, things  which  a  hundred  years  ago  were  regarded 
with  dread,  our  advanced  science  has  taught  us  are  more 
annoyances  than  dangers.  The  odor  of  sewer  gas  is 
offensive,  and  the  gas  itself  was  supposed  to  be  very 
dangerous,  but  more  recent  critical  examinations  and 
investigations  have  tended  to  show  that  in  itself  the 
gas  is  not  dangerous. 

565 


566  PUBLIC   HEALTH   ADMINISTRATION 

It  is  therefore  hoped  that  Part  I  may  remain  a  safe 
guide  for  the  future,  though  it  is  expected  that  much  of 
Part  II  will  sooner  or  later  need  to  be  revised;  but 
the  changes  will,  and  should,  depend  largely  upon 
advanced  legislation. 

It  may  not  be  inappropriate  here  to  glance  at  how 
the  change  in  methods  has  been  brought  about,  and  at 
the  commercial  consequences.  Dr.  Findlay  at  Havana 
had  long  been  maintaining  that  yellow  fever  was 
spread  by  mosquitoes.  When  the  United  States  found 
that  it  had  Cuba  on  its  hands  it  became  important,  if 
possible,  to  determine  the  cause  of  that  disease  which 
was  always  present  around  Havana,  and  which  was 
spread,  from  time  to  time,  to  our  shores.  Surgeon 
General  Sternberg,  of  the  United  States  Army,  there- 
fore, detailed  four  surgeons  to  make  the  investigation. 
They  made  the  study,  and  to  prove  the  correctness  of 
the  hypothesis  Surgeon  Carroll  first  offered  himself 
as  a  subject  to  be  bitten  by  an  infected  insect.  He  had 
the  yellow  fever,  and  it  left  his  heart  in  such  a  dis- 
eased condition  that  he  was  never  again  strong. 
Lazear  was  bitten  and  died.  Major  Reid,  the  chair- 
man of  the  commission  lived  only  a  few  years,  having 
been  seriously  impaired  in  health  through  his  sojourn 
in  that  sickly  clime.  Agramonte  alone  came  out 
from  the  siege  unharmed.  As  the  result  of  the  dis- 
coveries then  made,  with  the  studies  by  Major  Eoss  of 
the  British  Army  relative  to  malaria,  the  tropics  are 
no  longer  ' '  the  white  man 's  grave. ' '  Ports  which  were 
formerly  regarded  as  pestholes  are  now  the  seats  for 
immense  commerce.  The  digging  of  the  Panama  Canal 
was  made  possible  only  through  these  investigations. 
The  commercial  profits  for  this  country  alone  as  the 


PROLOGUE  567 

result  of  the  studies  have  been  far  greater  already 
than  the  entire  cost  of  the  army  for  the  whole  period 
of  our  national  history.  And  what  reward  has  been 
given  by  a  grateful  country  to  these  noble  martyrs  of 
science?  Carroll,  weak  and  sick,  was  no  longer  able 
to  do  his  full  duty  as  an  army  surgeon.  He  tried  to 
support  himself  in  making  further  investigations,  but 
before  he  died  he  was  permitted  by  his  noble  country 
to  pawn  his  miscroscope — his  means  of  support — in 
order  to  get  bread  to  keep  himself  and  his  family 
from  starving.  He  was  no  beggar,  but  he  suffered, 
and  died  in  silent  poverty,  leaving  his  home  heavily 
mortgaged,  and  a  family  to  be  supported  on  a  meagre 
pension.  It  was  brother  physicians,  whose  possible 
income  he  had  reduced  by  showing  how  to  eliminate 
sickness  (not  the  commercial  kings  who  had  profited 
by  his  sacrifice)  who  paid  off  the  mortgage  and  pro- 
vided for  the  education  of  his  children.  Carroll,  who 
enlisted  as  a  common  soldier,  re-enlisted  as  a  hospital 
steward,  pursued  his  studies,  graduated  in  medicine 
while  still  enlisted,  and  won  his  commission,  gave  his 
life  literally  to  save  others:  yet  those  who  have 
profited  financially  by  the  work  which  resulted  in  his 
untimely  death  have  done  nothing  to  show  their  appre- 
ciation, or  to  encourage  further  advances.  They  have 
permitted  the  patent  medicine  harpies  to  block  all 
efforts  towards  obtaining  a  national  health  service 
equal  to  the  dignity  of  the  nation. 

"While  a  few  commercial  kings  have  endowed 
research  institutions,  it  is  still  true  that  the  commer- 
cial world  is  constantly  opposing  sanitary  advance- 
ment. They  are  profiting  by  the  benefits  received,  but 
are  unwilling  to  share  even  a  very  small  percentage  of 


568  PUBLIC   HEALTH  ADMINISTRATION 

those  profits  with  the  noble  men  who  have  devoted  both 
time  and  strength  to  the  advances.  It  is  time  that 
the  business  men  see  to  it  that  trained  men  are  encour- 
aged to  seek  official  positions  in  the  health  service  of 
every  part  of  the  country,  and  that  the  service  be 
made  a  vocation,  rather  than  a  diletanti  avocation  for 
those  who  hold  the  offices.  As  a  commercial  proposi- 
tion (for  that  is  the  only  language  which  some  Ameri- 
cans can  understand)  it  will  pay  the  mercantile  world 
to  assist  in  advancing  scientific  health  administration, 
by  aiding  in  legislation,  and  by  securing  the  best  men 
possible  for  the  service.  The  open  way  for  advances 
is  obviously  through  intelligent  legislation.  Science 
is  universal;  it  knows  no  "schools,"  and  those  who 
honestly  block  advances  through  fear  of  school  dom- 
ination, are  but  the  dupes  of  sectarian  schemers.  An 
obstacle  to  progress  is  found  in  the  altruistic  efforts 
of  misguided  enthusiasts  who  are  not  thoroughly  edu- 
cated, and  perceiving  some  error  which  should  be  cor- 
rected, hasten  with  reform,  or  misnamed  ' 'progres- 
sive' '  legislation.  If  sterilization  of  defectives  is  to 
be  a  real  advance  in  governmental  methods,  it  must  be 
based  upon  minute  examination  of  the  problem,  by 
those  who  are  scientifically  competent  to  weigh  all 
evidence.  The  legislation  for  the  prevention  of  indus- 
trial disease  must  be  the  product  of  close  analysis  of 
conditions  rather  than  the  emotional  reaction  from  a 
few  observations. 

For  reasons  such  as  these  it  must  occur  that  if 
knowledge  of  science  and  familiarity  with  legal 
methods  are  united  in  the  necessary  legislation  of  the 
future,  the  subjects  in  this  second  part  will  show  a 
continued  advance  to  a  higher  level.    If,  on  the  con- 


PROLOGUE  569 

trary,  legislation  rests  upon  emotional  altruism  alone, 
or  upon  biologic  investigations  without  recognition  of 
legality  of  methods  under  our  system,  then  these  spe- 
cial subjects  must  reflect  a  degree  of  uncertainty  and 
confusion.  Before  a  change  shall  be  attempted  it  is 
necessary  to  be  certain  as  to  what  the  present  condi- 
tion may  be,  and  the  relationship  of  present  science  to 
legal  status.  Next,  the  point  aimed  at  must  be  deter- 
mined. Finally  (and  this  is  all  important  though 
often  ignored),  the  bearing  of  proposed  legislation 
upon  other  matters  must  be  considered,  and  the 
product  of  other  forces  upon  the  change  must  be 
measured. 


CHAPTER  XIV 

QUARANTINE  AND  ALLIED  SUBJECTS. 

§  401.  Origin  of  quarantine.  §  410.  Morbidity  reports. 

§  402.  Meaning  of   quarantine.  §  411.  Inspection. 

§  403.  Mechanics  of  quarantine.  §  412.  Eemoval  of  cases. 

§  404.  Quarantine    is    a    defensive  §  413.  Pest  houses, 

procedure.  §  414.  Disinfection. 

§  405.  Quarantine  does  not  depend  §  415.  Expense  of  quarantine, 

upon  statute.  §  416.  Vaccination. 

§  406.  What   diseases   are   quaran-  §  417.  Control  of  insects  and  other 
tinable  ?  carriers. 

§  407.  Diagnosis.  §  418.  Personal   liability   for   com- 

§  408.  Quarantine    powers,    nation,  municating    disease, 

state,  municipality. 

$  409.  Quarantine      versus      Com- 
merce. 

§401.  Origin  of  quarantine.  The  word  "quaran- 
tine" was  originally  used  to  designate  the  forty  days 
of  Lent.  Then  it  was  applied  in  English  law  to  the 
forty  days  after  the  death  of  her  husband,  during 
which  a  widow  had  the  privilege  of  remaining  in  her 
husband's  mansion  house,  and  during  which  her  dower 
was  to  be  assigned.  Next  we  find  the  term  employed 
with  reference  to  the  forty  days  during  which  a  vessel 
might  be  detained  without  intercourse  with  the  shore, 
after  arrival  from  an  infected  port.  When  it  was 
found  that  forty  days  isolation  was  not  invariably 
necessary  the  original  signification  was  dropped,  and 
the  term  denoted  simply  the  isolation  of  the  vessel. 
The  same  idea  governed  the  use  of  the  term  in  the 

570 


QUARANTINE   AND   ALLIED    SUBJECTS  571 

protection  of  land  frontiers,  and  the  isolation  of  per- 
sons or  houses  in  the  presence  of  infectious  diseases. 
It  is  interesting  to  note  that  during  the  earlier  years 
in  Europe  syphilis  was  a  subject  for  land  quarantine. 
§  402.  Meaning  of  quarantine.  Essentially  quaran- 
tine is  the  method  used  to  confine  disease  within  the 
person  in  whom  it  is  detected,  or  to  prevent  the  healthy 
person  from  contracting  the  infection.  With  this 
definition  it  is  apparent  that  true  quarantine  must 
include  something  more  today  than  the  separation  of 
the  sick  from  the  well.  The  diseased  person  may  be 
confined  within  a  certain  building,  and  thus  the  disease 
germs  be  also  confined;  but  the  mere  confinement  of 
the  individual  will  not  be  effective  quarantine  if  the 
germs  be  permitted  to  escape.  So  far  as  known  today, 
the  disease  germs  are  not  able  to  travel  through  the 
air  unaided.  They  are  carried  by  insects,  by  lower 
animals,  in  food,  or  on  the  hands  of  careless  attend- 
ants. Effective  quarantine  must  therefore  be  not  so 
much  the  isolation  of  the  person  as  the  prevention  of 
the  communication  of  germs  from  the  sick  to  the  well. 
Thus  in  the  case  of  yellow  fever  or  malaria,  effective 
quarantine  may  be  maintained  even  in  spite  of  per- 
mitting free  access  of  the  friends  to  the  sick  room,  and 
the  free  movements  of  those  friends  among  outsiders. 
On  the  other  hand,  in  the  case  of  typhoid  fever  effec- 
tive quarantine  must  include  very  strict  restrictions 
upon  the  movements  of  nurses  and  others  who  in  any 
way  come  in  contact  with  the  sick  person  or  his  dis- 
charges. In  the  case  of  malaria  or  yellow  fever,  effec- 
tive quarantine  may  be  maintained  even  though  little 
care  be  taken  of  the  evacuations,  either  from  the  stom- 
ach by  emesis,  from  the  bladder,  or  from  the  bowels.  In 


572  PUBLIC  HEALTH  ADMINISTRATION 

the  case  of  typhoid  fever  effective  quarantine  must  in- 
clude the  destruction  of  the  bacilli  in  all  of  these,  and  in 
cloths  used  to  wipe  the  mouth  of  the  patient.  The 
quarantine  of  yellow  fever  or  malaria  consists  in  pre- 
venting any  mosquito,  capable  of  conveying  the  dis- 
ease, from  coming  in  contact  with  an  individual.  A 
town  may  be  effectually  quarantined  against  the  yel- 
low fever  by  preventing  the  breeding  or  importation 
of  stegomyia  mosquitoes.  This  is  done  by  nature  in 
many  localities,  or  sections  of  the  country.  Since 
such  absolute  protection  is  uncertain,  even  in  naturally 
protected  locations  one  would  be  justified  in  screening 
all  imported  cases — imported,  because  in  such  a  com- 
munity no  case  could  occur  except  by  importation. 
There  would  be  no  violation  of  rational  quarantine  if 
the  nurse  of  a  yellow  fever  patient  should  spend  a  por- 
tion of  her  time  in  the  milk  business.  Such  an  activity 
on  the  part  of  the  nurse  of  a  typhoid  patient  would  be 
a  most  serious  infraction  of  quarantine  regulations. 
Quarantine,  therefore,  is  not  a  definite  and  uniform 
measure,  but  it  must  vary  according  to  the  subject. 

A  vessel  which  has  simply  been  prohibited  from 
landing  passengers  is  not  in  quarantine.  Quarantine 
is  "a  term  of  surveillance,  under  prescribed  regula- 
tions, to  be  performed  and  finished  with  a  result."  * 

§403.  Mechanics  of  quarantine.  Under  the  old 
ideas  relative  to  the  spread  of  infectious  diseases  it 
was  customary  to  build  a  fence  around  the  infested 
house,  and  station  a  guard  to  prevent  persons  from 
passing  the  bounds.  It  is  now  recognized  that  such  a 
method  is  unnecessary  and   inefficient.   For  yellow 

i  Gibson   v.  Steamer  Madras,   5 
H.  109. 


QUARANTINE  AND   ALLIED   SUBJECTS  573 

fever  or  malaria,  in  the  place  of  the  fence,  we  now  use 
screens  at  the  windows  and  doors,  and  netting  over  the 
bed  of  the  patient.  Effective  quarantine  for  the  plague 
does  not  so  strongly  require  such  measures,  as  it 
demands  that  the  building  be  made  rat-proof,  and  that 
the  house  be  freed  from  the  presence  of  all  rodents  as 
well  as  fleas  and  other  insects  capable  of  carrying  the 
bacillus.  The  mechanics  of  quarantine  must  there- 
fore be  variable,  and  determined  by  the  character  of 
the  infection  to  be  restrained. 

A  common  resource  in  the  administration  of  health 
departments  is  to  make  known  the  presence  of  an  infec- 
tious disease  by  placarding  the  premises  upon  which 
it  is,  or  by  displaying  flags.  Such  marks  should  be 
distinctive,  giving  notice  to  others  who  might  be 
endangered,  but  the  former  fear  inspiring  signals  are 
no  longer  justified  by  science.  It  is  presumed  that  the 
officer  making  use  of  such  placards  will  have  due 
regard  to  the  rights  of  others.  By  the  general  author- 
ity to  take  such  measures  as  are  deemed  necessary  for 
the  safety  of  the  inhabitants,  it  is  not  intended  to  con- 
fer unlimited  authority  on  the  board  to  control  persons 
and  property  at  its  discretion.2  When  placards  are 
used  they  should  only  be  removed  on  the  order  of  the 
proper  officer.  However,  when  the  authorities  wait 
to  placard  a  house  until  after  the  mistake  in  diagnosis 
has  been  discovered  by  the  reporting  physician,  their 
action  is  not  justified,  according  to  the  Tennessee 
court,  and  a  person  is  not  subject  to  punishment  for 
destroying  a  placard  upon  his  premises  after  he  has 
warned  the  authorities  that  no  case  of  communicable 

2  Brown  v.  Murdock,  140  Mass. 
323. 


574  PUBLIC  HEALTH  administration 

disease  exists  in  his  house.3  As  an  abstract  proposi- 
tion this  decision  does  not  seem  to  be  good  public 
health  law,  though  in  the  specific  instance  the  decision 
was  just.  The  fact  is  that  the  decision  as  to  whether 
or  not  the  original  report  was  well  founded  should 
•rest  with  the  health  office,  and  if  the  placard  be  used  it 
should  only  be  removed  when  the  health  office  becomes 
convinced  that  there  is  no  further  danger.  In  view  of 
the  policy  which  requires  communities  to  take  at  their 
own  expense  the  necessary  measures  for  the  preserva- 
tion of  the  public  health  within  their  limits,  and  under 
their  general  powers,  a  town  is  liable  for  the  payment 
of  the  services  of  guards  employed  by  a  health  officer 
to  keep  a  quarantine  effective.4 

§  404.  Quarantine  is  a  defensive  procedure.  It  will 
be  noted  from  the  foregoing  that  quarantine  is  a 
method  of  defense  against  the  inroads  of  disease.  But 
defense  is  possible  in  some  cases  without  any  restric- 
tions upon  the  person  of  the  patient.  Vaccination  is 
a  safe,  and  practically  sure  defense  of  the  person  so 
treated  against  small-pox.  If  the  entire  community  be 
successfully  vaccinated  there  would  be  no  need  for 
restricting  the  freedom  of  a  small-pox  patient.  Vaccin- 
ation might  therefore  be  considered  as  a  species  of 
quarantine.  So  are  antityphoid  inocculations.  A  less 
effective  measure  is  illustrated  by  the  use  of  the  spray 
of  the  lactic  acid  bacilli  as  a  protection  against  diph- 
theria. It  is  less  effective  simply  because  in  its  use 
we  cannot  be  sure  that  it  reaches  every  possible  hiding 
place  of  the  bacteria  of  the  disease.    The  use  of  diph- 

s  Memphis  v.  Smythe,  58  S.  W.  Atl.  571.  But  see  New  Decatur  v. 
215.  Berry,   90  Ala.  432. 

■*  Keef e    v.    Union,     (Conn.)     56 


QUARANTINE   AND    ALLIED    SUBJECTS  575 

theria  antitoxin,  on  the  other  hand,  is  a  protection  of 
the  individual  against  the  disease,  but  it  is  not  a  pub- 
lic health  measure,  because  it  is  possible  that,  even 
without  producing  evidence  of  illness  in  the  person, 
the  diphtheria  bacilli  may  still  be  able  to  grow  and 
multiply,  and  the  person  will  therefore  be  a  source  of 
danger  in  the  community.  Effective  quarantine 
against  diphtheria  should  therefore  include  some  such 
measure  as  the  use  of  the  lactic  spray  upon  all  persons 
who  are  coming  in  contact  with  the  patient.  Since 
these  bacilli  may  be  expelled  into  the  air  by  the  cough- 
ing of  the  patient,  or  perhaps  in  his  ordinary  breath- 
ing, and  thus  gain  entrance  to  the  nose  or  throat  of 
attendants,  "contact"  in  the  case  of  diphtheria  must 
include  all  who  have  come  into  the  room  with  the 
patient. 

Since  the  essential  feature  of  quarantine  is  protec- 
tion against  the  spread  of  infectious  diseases,  it  fol- 
lows that  it  is  quite  proper,  under  this  heading,  to  con- 
sider also  such  measures  as  tend  to  the  destruction,  or 
prevention,  of  the  carriers  of  infection.  This  includes 
the  draining  or  oiling  of  places  in  which  mosquitoes 
are  bred;  the  prevention  of  the  breeding  of  flies;  the 
destruction  of  rats  and  other  rodents  capable  of  con- 
veying the  bacillus  pestis,  even  the  supervision  of  food 
supplies,  such  as  milk,  which  often  act  as  carriers  of 
disease ;  and  the  protection  of  the  purity  of  water  sup- 
plies. To  show  how  broad  a  field  these  considerations 
may  be  made  to  cover,  it  is  interesting  to  note  that  the 
Rocky  Mountain  spotted  fever  is  communicated  by  a 
species  of  tick.  It  has  been  found  that  one  effective 
means  of  eradicating  the  tick  is  by  putting  sheep  to 
graze  upon  the  land.5 

s  Public     Health    Eeports,    Vol.    XXVIII,  No.  32,  Aug.  8,  1913. 


576  PUBLIC    HEALTH   ADMINISTRATION 

§  405.  Quarantine  does  not  depend  upon  statute.  As 
there  is  no  department  in  government  in  which  the 
power  for  good  or  evil  is  greater  than  that  which 
guards  the  health  of  the  people,  so  there  is  no  govern- 
mental activity  in  which  more  depends  upon  the  intelli- 
gent judgment  of  the  officer  than  in  matters  pertain- 
ing to  quarantine.  Each  case  must  be  considered  by 
itself,  and  without  delay.  On  the  one  hand,  the  officer 
must  protect  the  community,  and  by  instant  action;  on 
the  other,  the  interests  of  individuals  must  not  be 
unnecessarily  restrained.  From  the  nature  of  the  case 
this  judgment  cannot  depend  entirely  upon  knowledge 
of  enacted  statutes.  The  statutes  cannot  well  be  suffi- 
ciently exact  to  answer  all  of  the  questions.  At  their 
best,  statutes  are  but  the  crystallization  of  accepted 
practice  and  information.  In  many  cases  the  practice 
must  antedate  the  enactment. 

The  validity  of  quarantine  regulations  made  by 
state  health  authorities  is  a  question  for  the  state 
courts  to  decide.6  "Where  a  special  law  authorizes  a 
city  to  take,  in  case  of  epidemic  disease,  such  measures 
as  are  in  the  opinion  of  the  authorities  demanded  by 
the  public  health,  the  city  board  of  health  is  not  bound 
by  the  provisions  in  the  general  statutes  regulating 
the  establishment  of  quarantine,  and  were  justified  in 
requiring  the  whole  of  a  double  frame  house  to  be 
quarantined  when  small-pox  occurred  in  one-half  of 
it.7  The  orders  of  a  board  of  health  must  be  reason- 
able. An  order  of  the  State  Board  of  Health  of 
Mississippi  prohibiting  all  persons  from  getting  off 
from  trains  or  boats  at  any  point  in  the  state,  predi- 

«  Louisiana  v.  Texas,  176  U.  S.  1, 
7  Highland    v.    Schulte,    (Mich.) 
82  N.  W.  62. 


QUARANTINE   AND   ALLIED   SUBJECTS  577 

cated  on  the  fact  that  there  is  yellow  fever  at  several 
places  along  the  coast,  and  reported  suspected  cases  at 
various  points  in  the  state,  is  unreasonable  and  void.8 
Regulations  with  respect  to  quarantine  against  yellow 
fever,  providing  for  an  exception  in  the  case  of  "ves- 
sels bound  for  ports  in  the  United  States  north  of  the 
southern  boundary  of  Maryland,  with  good  sanitary 
condition  and  history,  having  had  no  sickness  on  board 
at  ports  of  departure,  en  route,  or  on  arrival,  provided 
they  have  been  five  days  from  last  infected  or  sus- 
pected port,"  were  held  not  to  constitute  a  discrimina- 
tion within  the  meaning  of  the  statute.9  The  orders 
of  boards  of  health  are  not  like  general  laws,  which 
all  may  be  supposed  to  know.  To  obtain  a  conviction 
of  a  person  charged  with  going  upon  the  street  in  vio- 
lation of  a  quarantine  order,  it  must  be  shown  that  the 
accused  had  previous  knowledge  of  the  order.10  A 
regulation,  prohibiting  Asiatic  persons  from  leaving 
the  city  without  first  submitting  to  inoculation  with  a 
preventive  serum,  in  view  of  the  presence  of  the  bubo- 
nic plague,  is  illegal  and  void,  as  being  an  unconstitu- 
tional invasion  of  personal  rights.  No  evidence  was 
submitted  to  show  that  Mongolians  were  more  subject 
to  the  disease  than  other  persons.11 

While  it  is  customary  to  provide  by  statute  that  the 
board  of  health,  or  sanitary  officers  shall  quarantine 
communicable  diseases,  that  power  is  implied  by  their 
appointment.  It  was  primarily  such  duties  which 
caused  health  departments  to  be  organized.  "The 
power  to  remove  and  quarantine  persons  who  have 

s  Wilson  v.  Alabama,  G.  S.  Ry.  "  State  v.  Butts,  9  L.  R.  A.  725. 

Co.,  28  So.  567.  "  Wong  Wai  v.  Williamson,  103 

9  1896,  21  Op.  Atty.  Gen.  446.  Fed.   1. 


578  PUBLIC   HEALTH   ADMINISTRATION 

been  infected  with  communicable  diseases,  or  exposed 
to  contagion,  need  not,  however,  be  conferred  on  sani- 
tary authorities  in  express  terms,  but  may  be  implied 
from  the  general  power  to  preserve  the  public  health, 
or  to  guard  against  the  introduction  or  spread  of  con- 
tagious diseases.  *  *  *  Under  powers  similar  to 
those  which  authorize  the  disinfection  not  only  of  prop- 
erty that  has  actually  been  exposed  to  contagion,  but 
of  all  articles  liable  to  convey  infection,  especially 
where  it  is  impossible  to  ascertain  their  history  or  the 
place  from  which  they  originally  came.  *  *  *  It  is 
no  defense  to  an  order  for  disinfection  that  the  owner 
has  already  caused  the  property  to  be  disinfected  on 
his  own  account,  where  the  authorities  regard  such 
previous  disinfection  inadequate."  12  It  is  the  duty  of 
the  health  officer  to  prevent  the  spread  of  an  infection 
by  such  quarantine  as  is  reasonable.  Though  quaran- 
tine may  be  independent  of  legislation,  the  directions 
of  existing  statutes  must  be  strictly  observed.  Thus 
the  laws  of  1894  in  Mississippi  provided  that  the  pres- 
ence of  three  members  of  the  executive  committee  of 
the  State  Board  of  Health  is  necessary  to  make  a 
valid  quarantine  and  under  that  restriction  two  mem- 
bers could  not  act.13  Authority  granted  by  the  statutes 
to  a  board  relative  to  the  care  and  responsibilities  in 
an  epidemic  can  not  by  the  board  be  delegated  to  a 
health  officer  and  so  create  in  such  officer  any  right  or 
authority  not  previously  existing.14 

In  an  epidemic  of  small-pox  in  Kentucky,  acting 
under  the  suggestions  of  the  State  Board  of  Health, 

12  21  Cyc.  394,  395.  «  Taylor  v.  Adair  Co.,  119  Ky. 

is  Wilson   v.   Alabama   G.   S.   E.       374;    Hickman    v.    McMorris,    149 
Co.,  77  Miss.  714.  Ky.  1,  147  S.  W.  768. 


QUARANTINE  AND   ALLIED   SUBJECTS  579 

another  physician  was  employed  by  the  County  Board 
of  Health  to  take  charge  of  the  cases.  The  county 
contested  his  claim  for  compensation,  basing  its  objec- 
tion upon  the  fact  that  there  was  a  regular  health 
officer,  whose  duty  it  was  to  take  charge  of  such  epi- 
demics; and  alleging  that  neither  the  county  board  of 
health,  nor  the  fiscal  court  had  authority  thus  to 
employ  another  physician.  The  court  of  appeals 
said:15  "It  is  clear  that  the  ordinary  duties  of  the 
county  health  officer,  for  which  he  is  paid  a  yearly 
salary,  are  largely  executive  and  supervisory  in  seeing 
that  the  rules  and  regulations  provided  by  law,  and 
the  rules  and  regulations  of  the  state  board  of  health 
are  enforced.  As  was  well  said  by  the  chancellor,  it 
is  his  duty  under  the  statute  to  take  general  superin- 
tendence of  all  contagious  diseases  and  to  institute 
quarantine  and  fumigate  premises,  and  to  carry  out 
these  general  purposes,  the  county  board  of  health  has 
power,  under  the  law,  to  employ  such  other  physicians 
and  nurses,  guards,  and  attendants  as  may  be  neces- 
sary to  administer  treatment  and  stamp  out  the  dis- 
ease. ' '  Such  employment  is  not  a  delegation  of  author- 
ity, and  in  the  case  in  question  it  was  shown  that  the 
health  officer  retained  his  supervision  of  the  case. 

Rules,  regulations,  and  orders,  to  be  effective  should 
be  in  writing,  or  printed,  and  the  rules  or  ordinances 
of  a  board  should  be  duly  passed  at  a  meeting  of  the 
board,  and  properly  recorded  in  the  meetings  of  the 
board.  Unless  they  be  thus  recorded  they  can  be  of 
no  effect  except  in  emergency.  Furthermore,  to  be 
fully  effective  they  should  be  so  published  that  all 

is  Breckenridge    County    v.    Mc- 
Donald, 150  S.  W.  549. 


580  PUBLIC   HEALTH   ADMINISTRATION 

interested  may  have  opportunity  to  learn  what  the 
rules  may  be.  Otherwise  the  ' '  due  process ' '  would  be 
violated,  in  that  the  victim  has  no  sufficient  notice  and 
opportunity  to  be  heard.16 

Under  the  statutes  of  North  Dakota  it  is  provided 
that  meetings  of  local  boards  of  health  shall  be  held 
after  three  days  notice.  It  is  also  provided  that  when 
it  shall  come  to  the  knowledge  of  the  board  that  there 
is  a  case  of  infectious  or  contagious  disease  within  its 
jurisdiction,  the  board  shall  "immediately"  examine 
into  the  facts  of  the  case  ' '  and,  if  such  disease  appears 
to  be  of  the  character  herein  specified,  such  board 
shall  adopt  such  quarantine  and  sanitary  measures  as 
in  its  judgment  tend  to  prevent  the  spread  of  such  dis- 
ease, and  may  immediately  cause  any  person  infected 
with  such  disease  to  be  removed  to  a  separate  house,  ■ ' 
etc.  A  physician  having  reported  to  the  clerk  of  the 
board  that  the  children  and  hired  man  in  a  certain 
family  were  ill  with  scarlet  fever,  the  clerk  called  up 
the  other  members  of  the  township  board  of  health  by 
telephone  and  discussed  the  situation.  After  such  dis- 
cussion the  president  of  the  board  called  up  the  clerk 
of  the  board  by  telephone  and  directed  him  to  post  a 
quarantine  notice  upon  the  infected  farm.  The  valid- 
ity of  this  quarantine  was  attacked  by  the  owner  of 
the  farm  on  the  ground  that  three  days  notice  was  not 
given  before  the  action  of  the  board.  The  supreme 
court  of  the  state  held  16a  that  the  provision  relative  to 
the  three  days  notice  did  not  apply  to  such  an  emer- 
gency as  the  establishment  of  quarantine.  The  fact 
that  the  statute  provided  that  examination  should  be 

ie  People  v.  Tait,  103  N.  E.  E.  iea  Plymouth  Township  v.  Klug, 

750.  145  N.  W.  130. 


QUARANTINE  AND   ALLIED   SUBJECTS  581 

"immediate,"  and  that  removal  was  authorized  im- 
mediately indicated  that  it  was  the  duty  of  the  board 
to  thus  act,  and  it  was  therefore  the  duty  of  the  clerk 
to  thus  act  without  waiting  for  the  formality  of  a  three 
days  notice  of  meeting. 

§  406.  What  diseases  are  quarantinable?  Generally 
speaking,  all  diseases  which  are  of  such  a  nature  that 
they  may  be  restrained  by  quarantine  are  subject  to  it. 
It  is  well  to  have  such  diseases  distinctly  specified  in 
the  statutes.  Such  a  provision  relieves  the  executive 
officers  of  responsibility  in  the  matter  of  decision,  and 
may  possibly  avoid  annoying  legal  delays  in  the 
course  of  administration — delays,  which  may  be  fatal 
to  efficiency.  Still,  under  the  general  authority  other 
diseases  than  those  specified  may  be  quarantined,  and 
they  often  are  so  controlled.  It  must  be  remembered, 
however,  that  in  such  cases  the  health  officer  assumes 
a  personal  liability.  It  devolves  upon  him,  in  case  of 
legal  contest,  to  prove  to  the  court  that  such  quaran- 
tine is  necessary  for  the  protection  of  the  public  health. 
i  i  It  follows  that  boards  of  health  may  not  deprive  any 
person  of  his  property  or  his  liberty,  unless  the  depri- 
vation is  made  to  appear,  by  due  inquiry,  to  be  reason- 
ably necessary  to  the  public  health." 17  It  is  not  enough 
that  the  health  official  shall  determine  this  necessity 
for  himself.  If  he  deprive  a  person  of  his  property 
or  liberty  unnecessarily  the  officer  in  that  act  is  not 
regarded  as  an  officer,  but  as  a  private  wong-doer.18 
Under  the  general  powers  to  quarantine  contagious 
diseases  the  legislature  grants  authority  to  so  restrict 
those  diseases  which  are  thus  recognized.    An  attempt 

"Kirk  v.  Wyman,  65  S.  E.  E.  isWyman,  Ad.  Law,  15. 

(S.  C.)   387. 


582  PUBLIC   HEALTH  ADMINISTRATION 

to  extend  the  operation  of  the  law  to  diseases  of  ques- 
tionable character  would  in  effect  be  an  act  of  legisla- 
tion, and  without  authority.  If  the  health  officer 
attempts  to  quarantine  a  disease  which  is  truly  infec- 
tious, though  unspecified  by  the  statute,  and  he  be 
haled  into  court,  he  must  prove  to  the  court  that 
the  disease  in  question  is  really  covered  by  the  general 
term.  For  this  proof  he  should  not  depend  merely 
upon  the  statement  of  physicians  that  in  their  opinion 
the  disease  is  really  infectious.  The  other  side  will 
doubtless  be  able  to  obtain  contrary  "evidence"  from 
prominent  members  of  the  medical  profession.  What 
the  court  desires  is  not  opinions  but  facts.  Those  facts 
the  health  officer  should  have  in  convincing  form.  If 
the  question  be  relative  to  the  confinement  of  a  case 
of  malarial  fever  the  officer  should  have  upon  a  slide 
samples  of  the  blood  of  the  patient  showing  the  speci- 
fic protozoal  cause.  That  slide  properly  submitted  as 
evidence,  with  other  slides  from  different  sources,  may 
properly  be  shown  to  the  "expert"  witnesses  before 
the  court,  and  be  a  basis  for  questions  which  will  go 
far  towards  distinguishing  fact  from  theory.  Unfor- 
tunately, because  the  specific  germs  are  not  fully  deter- 
mined, such  a  basis  of  evidence  is  not  always  possible; 
but  at  least  the  reasons  for  considering  the  disease 
dangerous  to  public  health  can  be  clearly  and  con- 
vincingly stated.  If  the  court  cannot  be  thus  con- 
vinced the  probability  is  that  the  disease  should  not  be 
quarantined.  It  is  not  sufficient  to  show  that  the  dis- 
ease is  caused  by  a  specific  germ,  and  that  that  germ 
when  introduced  into  the  body  of  a  healthy  person  will 
produce  the  disease.  The  means  must  be  demonstrated 
by  which  the  germ  is  transported,  and  the  possibility 


QUARANTINE   AND   ALLIED    SUBJECTS  583 

for  the  spread  of  the  disease  must  be  explained.  If 
the  probability  of  such  spread  is  very  small  it  is  doubt- 
ful if  quarantine  would  be  upheld.  It  must  be  shown 
that  the  deprivation  of  liberty  is  necessary.  In  deter- 
mining the  validity  of  the  acts  of  boards  of  health  the 
courts  are  disposed  to  be  very  liberal  in  their  con- 
struction of  authority  considering  the  public  good  to 
be  accomplished.19  In  the  absence  of  a  statute  the 
quarantine  powers  of  a  board  of  health  are  conceded,20 
but  they  must  not  unreasonably  interfere  with  the  lib- 
erty, property,  and  business  of  the  citizens.21  Although 
a  liberal  construction  should  be  given  to  the  rules  and 
regulations  adopted  by  boards  of  health,22  whether 
such  regulations  are  reasonable,  impartial,  and  consis- 
tent with  the  state  policy,  is  a  question  for  the  court 
to  decide.23  State  policy  is  expressed  sometimes  in 
enactment  and  if  so  the  wording  of  the  enactment  is 
binding.  The  law  as  it  is  worded  must  govern.  So, 
where  the  state  law  provided  that  quarantine  was  to  be 
established  by  a  local  board  of  health  when  a  written 
notice  was  given  by  a  physician,  it  was  held  that  in  the 
absence  of  such  written  notice  quarantine  might  not 
be  so  established.24  If  the  statute  name  the  diseases 
for  which  quarantine  may  be  established,  quarantine 
of  other  diseases  might  be  of  doubtful  legal  authority. 
§  407.  Diagnosis.  Properly  speaking,  diagnosis  or 
confirmation  of  diagnosis  is  within  the  discretion  and 
authority  of  the  health  official.     An  infectious  disease 

"Perth  Amboy  v.  Smith,  19  N.  22  Wong  Wai  v.  Williamson,   (C. 

J.  L.  52;  Hengehold  v.  Covington,  C.)  103  Fed.  1. 

108  Ky.  752.  23  state  v.  Speyer,  67  Vt.  502. 

20  Iowa  v.  Kirby,  120  Iowa  26.  24  state  v.  Kirby,  120  Iowa,  26. 

21  Commonwealth    v.    Patch,    97 
Mass.  221. 


584  PUBLIC  HEALTH  ADMINISTRATION 

is  a  nuisance.  "The  determination  that  a  thing  is  a 
nuisance  is  final  under  the  Pennsylvania  statute,  and 
in  a  suit  to  collect  expenses,  or  abate  the  nuisance,  the 
defendants  could  not  offer  evidence  to  show  that  there 
was  no  nuisance."25  Speaking  of  the  action  of  a 
health  officer,  a  court  said:  "If  there  was  any  case 
for  his  judgment,  or  any  fact,  or  appearance,  or  symp- 
tom, as  to  which  a  question  of  small-pox  could  arise,  his 
determination  was  final  as  to  the  legality  or  propriety 
of  removal. " 26  In  other  words,  the  opinion  in  Brown 
v.  Purdy  practically  affirms  that  the  diagnosis  of  the 
health  officer  being  within  his  discretion  is  law ;  and  it 
is  not  subject  to  judicial  review  except  in  extreme 
cases.  This  has  been  more  definitely  stated  in  other 
cases.  In  Hawaii,  "upon  habeas  corpus  questioning 
the  legality  of  the  detention  of  a  leper  suspect,  the 
only  issue  is  the  regularity  of  the  proceedings  under 
the  statute,  and  the  existence  or  non-existence  of  lep- 
rosy will  not  be  determined  collaterally,  as  this  would 
enable  every  person  regularly  pronounced  a  leper  to 
have  the  decision  of  the  board  of  examining  physicians 
reviewed  by  the  court,  which  is  not  the  tribunal  des- 
ignated by  the  legislature. ' ' 27  In  this  case  the  court 
further  held  that  a  leper  suspect  in  custody,  whether 
arrested  under  a  warrant,  or  voluntarily  surrendered, 
having  selected  a  physician  to  make  an  examination 
under  the  statute,  and  having  been  forced  without  legal 
cause  to  select  another  physician,  cannot  be  held  to 
have  forfeited  or  waived  his  rights,  and  proceedings 
with  the  second  physician  are  void.  Neither  are 
county  boards  of  supervisors  in  Michigan  authorized 

25  Kennedy  v.  Board  of  Health,  2  26  Brown  v.  Purdy,  8  K  T.  143. 

Pa.  366.  27  in  re  Kaiahua,  19  H.  218. 


QUARANTINE  AND   ALLIED   SUBJECTS  585 

to  substitute  their  judgment  in  place  of  the  board  of 
health  as  to  whether  a  person  has  a  dangerous  com- 
municable disease.28  It  is  the  official  duty  of  a  health 
officer  to  make  a  diagnosis,  and  he  is  not  entitled  to 
compensation  when  called  in  consultation  to  make  a 
diagnosis  in  a  case  of  disease  dangerous  to  the  public 
health.29  In  the  light  of  present  knowledge  as  to  infec- 
tious diseases,  a  positive  diagnosis  can  only  be  made 
in  some  cases  by  means  of  bacteriologic  examinations. 
These  examinations  require  laboratory  facilities,  and 
not  infrequently  they  occupy  much  time.  Best  results 
are  obtained  when  the  bacteriologist  devotes  most  of 
his  time  to  the  laboratory.  It  is  therefore  becoming 
more  common  to  appoint  municipal  bacteriologists. 
Ordinances,  therefore,  providing  for  bacteriologic 
investigation  and  research  have  a  just  and  reasonable, 
not  to  say  necessary,  relation  to  the  health  and  safety 
of  communities.  By  the  state  statute  in  Alabama 
municipal  corporations  are  given  power  to  adopt  ordi- 
nances not  inconsistent  with  the  laws  of  the  state,  to 
carry  into  effect  or  discharge  the  powers  and  duties 
conferred,  and  to  provide  for  the  safety,  health,  pros- 
perity, morals,  order,  comfort,  and  convenience  of  the 
inhabitants  of  the  municipality.  The  court  found  in 
this  sufficient  warrant  for  the  municipal  ordinance  pro- 
viding for  the  appointment  of  a  city  bacteriologist; 
and  it  did  not  find  any  conflict  between  this  ordinance 
and  the  state  health  and  quarantine  law.  It  regarded 
the  bacteriologist  as  an  aid  to  the  health  officer,  and 
not  as  a  rival.  The  ordinance  was  therefore  sus- 
tained.30   Large   discretion   is   vested   in   state    and 

28  Thomas  v.   Ingham   Supervis-  30  State  ex  rel.  Sholl  v.  Duncan, 
ors,  142  Mich.  319.                                   50  So.  265. 

29  Browne  v.  Livingston  Co.,  85 
N.  W.  745. 


586  PUBLIC   HEALTH   ADMINISTRATION 

municipal  authorities;  but  their  action  is  not  final. 
They  may  not  arbitrarily  interfere  with  private  busi- 
ness, nor  impose  unnecessary  and  unusual  restrictions ; 
but  the  court  will  not  ordinarily  undertake  to  review 
the  finding  of  the  proper  officers  that  the  disease  exists, 
and  that  the  quarantine  is  necessary.31  The  diagnosis 
of  the  health  officer  may  properly  be  brought  before  the 
court  for  a  determination  of  the  fact  whether  it  be 
made  really  under  discretion,  or  arbitrarily.  Any 
action  which  is  unnecessarily  severe  must  be  considered 
as  arbitrary.  If  property  be  seized  and  destroyed 
summarily,  that  is,  without  giving  the  owner  an  oppor- 
tunity to  prove  whether  or  not  it  be  dangerous,  the 
court  might  very  likely  declare  the  action  arbitrary. 
Thus,  where  a  horse  was  ordered  killed  by  a  board  of 
health  for  glanders,  the  court  held  the  members  of  the 
board  liable  to  the  owner  of  the  horse  for  its  value,  evi- 
dence having  been  presented  that  the  horse  did  not 
have  that  disease.32 

§  408.  Quarantine  powers,  nation,  state,  municipal- 
ity. Although  the  general  public  health  powers  of  the 
nation,  state,  and  city  were  discussed  in  Chapter  IX,  it 
seems  best  here  to  recapitulate  somewhat  as  to  matters 
pertaining  to  quarantine.  We  may  epitomize  by  say- 
ing that  the  nation  has  authority  over  quarantine  mat- 
ters between  states,  or  between  any  state  and  a  foreign 
country.  The  state  has  all  authority  over  quarantine 
within  its  limits,  and  the  authority  of  the  city,  village, 
or  county  is  subject  to  state  authority.  The  inspec- 
tion of  maritime  quarantines,  state  and  local,  as  well  as 
national,  may  be  the  proper  subject  of  Treasury  regula- 

31  Jew    Ho    v.    Williamson,    103  32  Miller    v.   Horton,   152   Mass. 

Fed.  10,  relative  to  plague.  540. 


QUARANTINE  AND   ALLIED   SUBJECTS  587 

tions.33  "While  it  is  true  that  the  power  vested  in 
Congress  to  regulate  commerce  among  the  states  is  a 
power  complete  in  itself,  acknowledging  no  limits 
other  than  those  prescribed  in  the  Constitution,  and 
that  where  the  action  of  the  estates  in  the  exercise  of 
their  reserved  power  comes  into  collision  with  it  the 
latter  must  give  way,  yet  it  is  also  true  that  quaran- 
tine laws  belong  to  that  class  of  state  legislation  which 
is  valid  until  displaced  by  Congress,  and  that  such 
legislation  has  been  expressly  recognized  by  the  laws 
of  the  TJnited  States  almost  from  the  beginning  of 
the  government.  Even  if  Congress  had  remained  silent 
on  the  subject,  it  would  not  have  followed  that  the 
exercise  of  the  police  power  in  this  regulation,  although 
necessarily  operating  on  interstate  commerce,  would 
therefore  be  invalid.  Although,  from  the  nature  and 
subject  of  the  power  to  regulate  commerce,  it  must  be 
ordinarily  exercised  by  the  national  government  exclu- 
sively, this  has  not  been  held  to  be  so  where  in  relation 
to  the  particular  subject  matter  different  rules  might 
be  suitable  in  different  localities.  At  the  same  time, 
Congress  could  by  affirmative  act  displace  the  local 
laws,  substitute  laws  of  its'  own,  and  thus  correct  any 
unjustifiable  and  oppressive  exercise  of  power  by  state 
legislation."  34  The  larger  the  United  States  becomes 
and  the  more  that  it  involves  sections  of  the  world 
widely  different  as  to  climate  and  population,  the  less 
likely  is  it  to  attempt  to  displace  state  laws  relative  to 
the  direct  restriction  of  infectious  diseases.  Still  it 
must  be  remembered  that  Congress  has  that  power, 

33  20  Op.  Atty.  Gen.  (1893)  645. 
3*  Louisiana  v.  Texas,  176  U.  S. 
1. 


588  PUBLIC   HEALTH  ADMINISTRATION 

and  because  it  has  that  power  the  federal  courts  also 
have  power  to  check  the  unjustified  attempts  of  states, 
in  the  interest  of  health,  to  interfere  with  interstate  or 
foreign  commerce.  In  the  federal  quarantine  regula- 
tion authorizing  the  placing  in  quarantine  of  vessels 
arriving  between  May  1  and  November  1  from  "a 
tropical  American  port,"  the  word  "American"  is  to 
be  construed  as  meaning  the  continent  of  America,  or 
the  "Western  Hemisphere,  and  not  the  United  States.35 
The  "port  of  departure"  referred  to  in  the  act  of 
Congress  of  1893  at  which  a  merchant  ship  bound  for 
the  United  States  must  procure  a  bill  of  health  from 
the  consul  or  consular  officer  of  the  United  States,  is 
the  port  of  clearance,  and  obtaining  such  bill  of  health 
at  the  last  port  at  which  a  vessel  stops  before  reaching 
the  United  States  is  not  sufficient,  unless  that  is  the 
port  of  clearance.36  But,  the  fullest  respect  is  required 
by  the  federal  laws  from  public  and  private  vessels  for 
local  quarantine  regulations  adopted  under  the  pro- 
visions of  state  laws.37 

The  detention  and  disinfection  of  immigrants  by 
order  of  a  state  board  of  health  with  the  purpose  of 
prevention  of  disease  is  not  a  regulation  of  foreign 
commerce  by  a  state,  within  the  measure  of  constitu- 
tional prohibitions.  The  right  of  the  several  states  to 
establish  and  enforce  quarantine  regulations  is  not 
limited  by  any  existing  treaty.  In  enforcing  its  quar- 
antine regulations  a  state  may  detain  immigrants  from 
noninfected  places  who  have  traveled  with  others  from 
infected  places.  The  enforcement  of  the  quarantine 
regulations  of  a  state  against  immigrants  cannot  be 

35  Gow  v.  Gans  S.  S.  Line,  174  36  The  Dago,  61  Fed.  986. 

Fed.  215.  37  The  Dago,  loc  cit. 


QUARANTINE   AND   ALLIED    SUBJECTS  589 

restrained  by  injunction  in  a  federal  court,  although 
the  persons  detained  have  been  examined  and  passed 
by  federal  health  officers.  The  costs  and  charges  of 
quarantine  inspection  under  state  laws  may  be  law- 
fully imposed  upon  the  carrier  which  brings  the  sus- 
pected passengers  into  the  country,  as  being  incident 
to  the  business  in  which  it  is  engaged.38  In  spite  of 
the  above  citation,  it  is  not  probable  that  today  such 
a  decision  would  be  given,  for  example,  with  reference 
to  passengers  from  a  yellow  fever  district  seeking 
admission  to  a  state  like  North  Dakota.  Such  detention 
and  disinfection  would  there  be  unnecessary  and  arbi- 
trary, being  based  upon  an  old  prejudice,  rather  than 
upon  science.  There  is  no  evidence  that  the  disease  is 
carried  by  the  fomites,  such  as  the  clothing,  so  that 
disinfection  would  be  unjustifiable ;  and  it  is  not  likely 
that  the  stegomyia  could  be  found  in  sufficient  quanti- 
ties in  the  Dakotas  to  make  any  danger  to  the  com- 
munity, were  cases  of  yellow  fever  actually  planted  in 
their  midst.  While,  therefore,  the  federal  authority 
in  such  matters  has  never  in  recent  years  been  ques- 
tioned, such  power  has  been  allowed  to  remain  in  abey- 
ance, doubtless  in  view  of  the  different  requirements 
of  different  climates  and  localities,  and  of  the  difficulty 
of  framing  a  general  law  upon  the  subject,  and  Con- 
gress has  elected  to  let  the  several  states  regulate  the 
matter  of  protecting  the  public  health  as  to  themselves 
seemed  best.39  The  authority  of  the  states  to  enact 
such  laws,  even  though  interfering  with  interstate  or 
foreign  commerce,  is  beyond  question,  but  it  cannot  be 
made  to  cover  discriminations  and  arbitrary  enact- 

38  Minn.,  St.  Paul  &  S.  S.  M.  By.  »»  Bartlett  v.  Loekwood,  160  U. 

Co.  v.  Milner,  57  Fed.  276.  S.  361. 


590  PUBLIC    HEALTH   ADMINISTRATION 

ments.40  So  a  rule  made  in  Michigan  requiring  the 
inspection  of  all  baggage,  without  regard  to  whether  or 
not  it  came  from  an  infected  district,  aside  from  exceed- 
ing the  statute  under  which  the  board  was  acting,  was 
unreasonable  and  arbitrary.41  On  the  other  hand,  so 
long  as  the  officer  keeps  within  his  discretion  he  may 
not  properly  be  resisted.  Thus,  a  health  officer  who  has 
authority  to  pass  on  the  sufficiency  of  the  health  cer- 
tificate of  a  passenger  on  a  railroad  train,  to  entitle 
the  latter  to  enter  a  city  under  quarantine  regulations, 
has  also,  by  necessary  implication,  authority  to  prevent 
him  from  entering  such  city,  if  the  certificate,  under 
the  health  regulations  in  force,  was  not  such  as  to 
entitle  him  to  do  so.  The  conductor  is  not  bound  to 
contest  with  the  health  officer  the  propriety  or  legality 
of  the  exercise  of  his  power  and  authority  in  the  partic- 
ular instance,  as  the  sufficiency  of  the  health  certificate 
is  a  question  for  the  health  officer  and  not  for  the  con- 
ductor.42 

The  authority  for  interstate  quarantine,  in  so  far  as 
it  does  not  rest  with  the  nation,  is  solely  within  the 
power  of  the  state.  In  Kentucky  it  was  held  that 
though  the  county  had  authority  under  the  statutes  to 
establish  quarantine  against  other  parts  of  the  same 
state,  it  had  no  such  power  to  establish  or  maintain 
quarantine  either  against  another  state,  or  any  portion 
thereof,  unless  that  power  be  distinctly  given  by  the 
state  legislature.43  But  the  right  of  a  state  through 
its  proper  officers  to  place  in  confinement,  and  to  sub- 

40  Simpson  v.   Shepard,    (U.  S.)  *2  Baldwin  v.  Seaboard  Air  Line 

33  Sup.  Ct.  729;  Hannibal,  etc.,  R.  R.  R.  Co.,  128  Ga.  567. 

R.  Co.  v.  Husen,  5  Otto,  465.  «  Allison  v.  Cash,  143  Ky.  679, 

4i  Hurst    v.    Warner,    102    Mich.  137  S.  W.  245. 
238. 


QUARANTINE   AND    ALLIED   SUBJECTS  591 

ject  to  treatment  those  who  are  suffering  from  a  con- 
tagious or  infectious  disease,  on  account  of  the  danger 
to  which  the  public  would  be  exposed  if  they  were 
permitted  to  go  at  large,  is  so  free  from  doubt  that  it 
has  rarely  been  questioned.44  "The  health  of  the 
inhabitants  of  the  city  is  still  a  matter  of  concern  to 
the  state,  and  of  such  vital  concern  that  the  general 
assembly  (of  Ohio)  has  not  thought  proper  to  commit 
it  exclusively  to  the  control  and  discretion  of  men  who 
may  not  have  any  particular  ability  or  experience  in 
sanitary  affairs.  The  loss  of  a  single  life  is  a  direct 
economic  loss  to  the  state,  and,  therefore,  it  wisely 
refrains  from  committing  to  inexperienced  people  final 
discretion  as  to  the  means  and  methods  of  preserving 
the  life  and  health  of  its  citizens,  but  aside  from  the 
concern  of  the  state  for  the  health  and  comfort  of  the 
residents  of  any  one  city,  its  vigilance  seeks  to  serve  a 
larger  purpose.  Cities  are  no  longer  enclosed  by  stone 
walls  and  separate  and  apart  from  the  balance  of  the 
state.  The  sanitary  condition  existing  in  any  one  city 
of  the  state  is  of  vast  importance  to  all  the  people  of 
the  state,  for  if  one  city  is  permitted  to  maintain 
sanitary  conditions  that  will  breed  contagious  and 
infectious  diseases,  its  business  and  social  relation  with 
all  other  parts  of  the  state  will  necessarily  expose  other 
citizens  to  the  same  diseases."45 

A  statute  delegating  to  a  city  the  power  to  make 
quarantine  regulations  is  not  unconstitutional.46  "A 
municipality  has  no  implied  power  to  establish  quaran- 
tine regulations,  and  is  not  liable  for  the  compensa- 

«  State  v.  Berg,  70  N.  W.  347.  «  Metealf  v.  St.  Louis,  11  Mo. 

45  State     Board     of     Health     v.       102. 
Greenville,  86  Ohio,  1. 


592  PUBLIC    HEALTH    ADMINISTRATION 

tion  of  an  officer  employed  to  enforce  quarantine  regu- 
lations against  a  neighboring  town  in  which  an  epi- 
demic occurs."47  A  municipal  ordinance  is  void  if  it 
conflict  with  state  quarantine  laws.  The  public  health 
is  doubtless  an  interest  of  great  delicacy  and  im- 
portance. Whatever  power  is  in  fact  necessary  to 
preserve  it  will  be  cheerfully  conferred  by  the  legisla- 
ture and  carried  into  full  effect  by  the  courts.  But  it 
can  never  be  permitted  that,  even  for  the  sake  of  the 
public  health,  any  local  inferior  board  or  tribunal 
should  repeal  statutes,  suspend  the  operation  of  the 
constitution,  and  infringe  all  the  natural  rights  of  the 
citizens.48 

Cities,  villages,  towns,  and  counties  are  parts  of  the 
state,  and  as  such  must  use  the  general  police  power  for 
the  protection  of  the  citizens.  It  is  customary  by  the 
enactment  of  general  statutes,  not  only  to  give  these 
political  divisions  of  the  state  authority  to  appoint 
health  officials  and  to  care  for  such  matters  locally,  but 
also  to  impose  a  duty  upon  them  to  make  such  appoint- 
ments and  do  such  public  service.  ' '  The  obligation  and 
the  power  of  a  city  council  to  act  as  a  board  of  health 
and  prevent  the  spread  of  contagion  is  not  lessened  by 
their  omission  to  create  a  separate  board  of  health. 
Their  power  is  a  police  power  and  commensurate  with 
their  board  of  health."49  A  county  board  of  health 
may  charge  a  vessel  for  quarantine  services  where 
proper  provision  has  been  made  therefor  by  statute.50 
But  a  county  board  of  health  cannot  require  a  vessel  to 
deviate  six  miles  from  its  course  to  reach  a  quarantine 

47  New  Decatur  v.  Berry,  90  Ala.  49  Rae  v.  Flint,  16  N.  W.  887. 
432.  so  Ferrari    v.    Escambia    County 

48  People  v.  Eoff,  3  Park  Crim.  Bd.  of  Health,  24  Fed.  390 ;  Harri- 
Eep.  216.  son  v.  Baltimore,  1  Gill,  264. 


QUARANTINE   AND    ALLIED    SUBJECTS  593 

station  for  inspection.  If  a  vessel  is  not  liable  to  quar- 
antine, after  the  determination  of  that  fact,  any  deten- 
tion thereof,  or  any  interference  with  the  passage  of  the 
United  States  officers  to  and  from  the  vessel  is  unreas- 
onable. An  existing  and  lawfully  established  quaran- 
tine is  necessary  to  the  validity  of  regulations  made  by 
a  board  of  health  restricting  visits  to  vessels  which 
enter  a  port,  especially  in  the  case  of  United  States 
officers.51 

§  409.  Quarantine  versus  commerce.  Contrary  to 
what  is  ordinarily  considered  to  be  the  fact,  quarantine 
is  an  aid  to,  rather  than  an  opponent  of,  commerce.  It 
may  sometimes  become  necessary  to  restrain  the  pas- 
sage of  persons,  animals,  or  goods  from  one  section  to 
another;  but  that  is  in  order  that  the  wider  intercourse 
between  localities  may  thrive  and  prosper.  It  some- 
times becomes  necessary  to  draw  a  strict  line  of  inter- 
pretation between  commerce  and  quarantine.  The 
Idaho  Sheep  Law  of  1897  made  it  unlawful  to  bring 
sheep  into  that  state  without  having  them  dipped. 
This  general  provision  was  in  order  to  prevent  the 
importation  of  certain  infectious  diseases  among  the 
sheep.  The  dipping  of  sheep  had  no  necessary  con- 
nection with  the  presence  of  disease.  A  flock  of  sheep, 
absolutely  free  from  disease  and  without  any  suspicion 
of  exposure  to  an  infectious  disease,  if  imported  into 
the  state  must  be  dipped,  perhaps  at  great  expense. 
This  expense  added  to  the  cost  of  the  sheep  would  nat- 
urally raise  their  price,  and  the  law  would  therefore 
tend  to  restrict  importation  from  other  states.  By 
cutting  down  the  importation,  thus  decreasing  the 

si  Forbes    v.    Escambia    County 
Board  of  Health,  28  Fla.  26. 


594  PUBLIC   HEALTH   ADMINISTRATION 

supply,  while  the  demand  remains  the  same,  the  value 
of  sheep  within  the  state  is  increased.  This  law  was 
therefore  considered,  not  as  a  sanitary  precaution  sim- 
ply, but  as  a  restraint  upon  interstate  commerce,  and 
consequently  infringing  upon  the  rights  of  Congress 
and  violating  the  Constitution  of  the  United  States.52 
(§  §  250,  251.)  The  Missouri  statute  prohibiting  the 
importation  of  cattle  from  certain  territory  which 
might  possibly  be  infected  with  the  cattle  fever,  was 
set  aside  on  the  same  ground.53  Likewise  the  Minne- 
sota statute,  which  prohibited  the  sale  of  meat  which 
had  not  been  inspected  within  the  state  previous  to 
slaughter,  was  declared  unconstitutional.54  On  the 
other  hand,  where  the  act  was  clearly  in  the  interest 
of  quarantine,  as  requiring  restrictions  when  in  fact 
cattle  came  from  a  diseased  territory,55  or  requiring  an 
inspection  of  sheep  before  permitting  them  to  be  upon 
the  highways,56  it  has  been  upheld.  By  the  Idaho  Act 
of  March  13,  '99  provision  was  made  for  quarantine 
of  sheep  upon  a  proclamation  to  be  issued  by  the 
governor.  The  governor  issued  such  a  proclamation 
on  account  of  the  scab.  The  court  held,  however,  that 
this  proclamation  was  a  restraint  of  commerce  because 
in  fact  there  was  no  disease  epidemic.57  It  is  some- 
times necessary  to  establish  a  quarantine  though  it 
interfere  with  commerce  even  with  foreign  countries,58 
and  even  though  there  be  no  disease  in  such  foreign 
countries.  When  a  boat  undertook  to  land  in  Louisiana 

52  State  v.  Duckworth,  51  P.  456.  56  Easmussen  v.  State  of  Idaho, 

53  E.   B.   Co.  v.   Husen,   5    Otto,       181  U.  S.  198. 

465.  57  Smith  v.  Lowe,  121  Fed.  753. 

54  Minnesota  v.   Barber,  136   U.           58  Morgan  Steamship  Co.  v.  Lou- 
S.  313.  isiana  Board  of  Health,  118  IT.  S. 

55  Smith  v.   St.  L.  &  S.  W.  Ey.       445. 
Co.,  181  U.  S.  248. 


QUARANTINE   AND    ALLIED    SUBJECTS  595 

with  passengers  who  had  sailed  from  European  ports 
free  from  disease,  and  though  they  came  in  accordance 
with  treaties  made  with  European  nations,  they  were 
refused  permission  to  land  because  yellow  fever  was 
prevalent  at  the  points  at  which  they  wished  to  land. 
The  passengers  were  themselves  free  from  all  suspicion 
of  infectious  disease.  This  refusal  of  the  state  author- 
ities was  upheld  in  the  United  States  Supreme  Court.59 

It  may  be  necessary  to  temporarily  suspend  the  mer- 
cantile transactions  of  a  single  establishment  in  order 
that  the  community  may  be  able  to  conduct  its  busi- 
ness. This  is  really  not  a  restraint  of  commerce,  for  if 
the  local  restrictions  should  be  removed,  the  chance 
would  be  that  so  many  persons  in  the  community  might 
become  sick,  as  to  effectually  check  all  business.  Such 
restriction  of  individuals  or  such  a  ban  placed  upon  an 
individual  business  concern  is  for  the  benefit  of  the 
community  as  a  whole ;  and  for  that  general  good  every 
citizen  is  bound  to  contribute  when  called  upon.  "It 
seems  to  be  well  settled  that  a  health  officer,  who  by 
statute  is  authorized  to  take  action  for  the  prevention 
of  the  spread  of  disease,  is  not  liable  for  injuries  result- 
ing from  such  reasonable  and  customary  measures  as 
he  may  in  good  faith  adopt  or  direct  for  that  purpose 
with  regard  to  persons  or  matters  subject  to  his  juris- 
diction."60 

In  nearly  all  health  and  quarantine  laws  some  are 
put  to  inconvenience  and  annoyance,  and  many,  to  a 
certain  extent,  are  deprived  of  their  liberty  and  free- 

59  Compagnie  Francaise  de  Nav-  citing    21    Cyc.    405 ;     Seavey    v. 

igation    a,    Vapeur    v.     Louisiana  Preble,   64   Me.    120;    Whidden  v. 

State  Board  of  Health,  186  U.  S.  Cheever,  69  N.  H.  142,  44  Atl.  908, 

380.  76    Am.    St.    Eep.    154;    Beeka   v. 

oo  Allison  v.  Cash,  143  Ky.  679;  Dickinson  Co.,  131  la.  244. 


596  PUBLIC   HEALTH   ADMINISTRATION 

dom  of  action.  But,  if  the  public  necessity  requires  it, 
the  convenience  or  even  liberty  of  the  individual  citizen 
must  give  way  for  the  welfare  of  the  greater  number. 
*  *  *  The  good  of  the  many  must  be  preferred 
to  the  convenience  or  supposed  welfare  of  the  few.81 
The  right  of  a  person  to  a  berth  or  passage  on  a 
sleeping  car  is  not  an  unlimited  right,  but  it  is  subject 
to  such  reasonable  regulation  as  the  company  has  pre- 
scribed for  the  due  accommodation  of  the  passengers, 
and  for  their  safety  and  comfort.  A  rule  to  the  effect 
that  persons  known  to  be  insane,  or  afflicted  with  any 
contagious  or  infectious  disease  will  not  be  permitted 
in  the  use  of  the  cars  of  a  company,  it  would  seem  was 
adopted  by  the  company  for  the  safety  and  comfort  of 
the  company's  patrons  or  passengers,  and,  whether  the 
company  is  to  be  treated  as  a  common  carrier  or  other- 
wise, the  rule  is  a  wise  one  and  the  court  has  no  diffi- 
culty in  reaching  the  conclusion  that  it  is  a  reasonable 
one.62  If  it  should  be  ascertained  that  a  passenger 
was  suffering  with  small-pox,  the  carrier  might  not 
only  cause  him  to  leave  the  train  before  arriving  at  the 
destination  pointed  out  in  his  ticket,  but,  under  its 
duty  for  the  protection  of  its  other  passengers,  it  might 
become  necessary  to  compel  him  to  do  so.63  But,  a 
town  ordinance,  for  example,  prohibiting  any  person 
from  entering  the  town  from  a  certain  place  described 
as  infected  with  small-pox  is  valid,  but  it  does  not 
apply  to  those  who  left  the  infected  place  before  the 
passage  of  the  ordinance,  according  to  a  North  Caro- 
lina case.64 

ei  Laubaugh   v.   Bd.    of   Educa-  «3  Central  Ga.  E.  E.  Co.  v.  Mad- 

tion,  66  111.  App.  159.  den,  69  S.  E.  165. 

«2  Pullman  Co.  v.  Krauss,  40  So.  64  Salisbury     Commissioners     v. 

398.  Powe,  51  N.  C.  134. 


QUARANTINE    AND   ALLIED   SUBJECTS  597 

§410.  Morbidity  reports.  The  exact  usage  in  dif- 
ferent states  relative  to  the  discovery  and  care  of  infec- 
tious diseases  must  vary  according  to  the  laws.  It  must 
be  remembered  that  statutes  are  but  the  crystallization 
of  pre-existing  usages,  although  the  statute  may  carry 
the  usage  beyond  its  former  limits.  In  the  absence  of 
specific  legislation  the  health  authorities  must  depend 
upon  their  own  judgment,  and  must  be  prepared  to 
defend  the  reasonableness  of  their  conclusions  before 
the  courts.  As  has  previously  been  intimated  such  a 
course  leaves  the  health  department  liable  to  be  seri- 
ously hampered  at  a  critical  period.  It  seems  far  better 
that  the  conditions  should  be  foreseen,  and  that  full 
preparations  be  made  by  the  enactment  of  suitable 
statutes.  It  is  quite  customary  that  the  statutes  pro- 
vide for  the  prompt  report  of  every  case  of  infectious 
disease  by  the  attending  physician;  and  to  guard 
against  any  possibility  of  omission  members  of  the 
family  are  usually  required  by  law  to  see  that  such 
reports  are  made.  (§  §  32,  392,  393.)  These  reports  are 
moral  obligations  upon  citizens.  In  order  that  each 
citizen  may  be  protected  from  outside  harm  he  must 
also  assist  in  protecting  others.  Since  this  duty  of 
notification  is  general,  no  compensation  is  due.65 
Statutes  and  ordinances  requiring  physicians  to  report 
cases  of  infectious  diseases  to  the  proper  officers  have 
generally  been  upheld.66  Whether  or  not  the  expression 
"or  any  other  disease  dangerous  to  the  public  health" 
covers  the  particular  case  at  bar  is  a  question  for  the 
jury  to  decide.67     Eight  days  after  the  discovery  of  a 

es  Sears  v.  Gallatin  County,   20  67  People   v.   Shurly,   91   N.   W. 

Mont.  462,  40  L.  R.  A.  405.  139,  131  Mich.  177. 

ee  State  v.  Wordin,  14  AtL  801 ; 
Robinson  v.  Hamilton,  14  N.  W. 
202. 


598  PUBLIC  HEALTH  ADMINISTRATION 

case  of  diphtheria  is  not  a  reasonable  time  in  which  to 
make  the  report.68  In  the  District  of  Columbia  it  was 
held  that  a  physician  in  charge  of  a  dispensary  where 
infectious  diseases  were  not  treated,  although  he  had 
examined  a  patient,  and  had  diagnosticated  the  case 
as  one  of  diphtheria,  was  not  violating  the  local  require- 
ment in  failing  to  report  the  case,  since  he  declined  to 
treat  it,  and  suggested  that  the  child  be  taken  home, 
isolated,  and  a  physician  called.69  This  decision  does 
not  seem  to  be  in  the  interest  of  general  protection  of 
health,  because  such  cases  are  frequently  kept  hidden 
from  the  authorities  in  order  to  avoid  the  restrictions 
of  quarantine.  In  the  state  of  Missouri  we  get  another 
exception.  A  Christian  Scientist  believing  that  disease 
is  a  delusion  of  the  mind,  and  teaching  the  sick  such 
theory,  is  not  a  physician  who  can  be  subjected  to  the 
penalty  for  failing  to  report  a  case  of  contagious 
disease.70  We  may  remark  that  the  particular  delusions 
of  no  person  should  be  permitted  to  injure  the  public 
health.  Either  infectious  diseases  are  realities,  and 
are  transmitted  through  the  agency  of  visible  objects, 
or  our  sense  of  vision  (through  the  microscope)  and 
all  logic  are  unsafe  guides  about  anything  in  this  life. 
If  the  law  permits  a  person  to  attempt  to  heal  the  sick, 
or  to  treat  such  sick  person,  it  should  be  sufficiently 
explicit  to  demand  from  any  such  healer  a  prompt 
report  of  all  infectious  disease. 

§  411.  Inspection.     In  spite  of  these  requirements 
relative  to  reports  of  infectious  disease,  there  are  cases 
which  demand  official  attention.    There  may  be  an  hon- 
es People    v.    Brady,    90    Mich.  ™  Kansas  City  v.  Baird,  92  Mo. 
459,  51  N.  W.  537.                                   App.  204. 

«9  Johnson  v.  District  of  Colum- 
bia, 27  App.  D.  C.  259. 


QUARANTINE   AND   ALLIED   SUBJECTS  599 

est  question  as  to  diagnosis,  or  there  may  be  the 
attempt  to  hide  disease  on  the  part  of  those  who  are 
fearful  of  the  effects  of  quarantine.  Not  seldom  famil- 
ies delay  or  neglect  to  call  physicians  on  account  of 
the  fear  of  financial  loss  through  quarantine.  Any 
course,  therefore,  which  tends  to  lighten  the  restric- 
tions of  this  procedure  is  to  be  desired.  It  is  frequently 
necessary  that  the  health  inspector  shall  enter  upon 
private  property  for  the  purpose  of  discovering  infec- 
tious diseases.  "The  power  of  inspection  is  exercised 
as  an  incident  to  regulations  for  the  prevention  of 
disease,  accident,  or  fraud.  It  operates  almost  exclu- 
sively on  buildings  and  machinery  or  other  apparatus, 
and  on  articles  exposed  for  sale.  The  power  of  inspec- 
tion is  distinguishable  from  the  power  to  search.  The 
latter  is  exercised  to  look  for  property  which  is  con- 
cealed ;  the  former,  to  look  at  property  which  is  exposed 
to  public  view  if  offered  for  sale,  and  in  nearly  all  cases 
accessible  without  violation  of  privacy.  Hence  inspec- 
tion does  not  require  affidavit,  probable  cause,  or  judi- 
cial warrant.  The  right  to  inspect  may  be  reserved  as 
a  condition  in  granting  a. license.  The  constitutional 
aspect  of  inspection  is,  however,  different  where  it  is 
extended  to  interior  arrangements  of  private  houses,  or 
personal  property  kept  therein  in  private  custody.  It 
appears  that  health  authorities  often  claim  the  right 
to  enter  private  houses,  to  inspect  sanitary  arrange- 
ments, in  some  cases  by  express  legal  authority."71 
It  is  competent  for  the  state  to  provide  for  inspection 
to  ascertain  if  nuisance  exists,  and  even  to  provide  that 

7i  Freund,  Police  Power,  47 ; 
also,  Chapin  Municipal  Sanitation, 
112. 


600  PUBLIC   HEALTH  ADMINISTRATION 

the  reasonable  cost  of  such  inspection  shall  be  paid  by 
the  property  owner.72  The  inspector  has  an  unques- 
tioned right,  under  such  circumstances,  to  enter  the 
premises.73  But  the  law  will  not  allow  the  right  of  prop- 
erty to  be  invaded  under  the  guise  of  a  police  regula- 
tion for  the  preservation  of  health  when  it  is  manifest 
that  such  is  not  the  real  purpose  of  the  regulation.74 

While  this  abstract  right  of  entrance  may  be  unques- 
tioned, the  right  of  entrance  at  unusual  hours  would 
be  deemed  unreasonable  except  in  extreme  emergen- 
cies. In  other  words,  where  the  patient  is  not  far  dis- 
tant from  the  health  office,  it  would  be  deemed  unrea- 
sonable for  an  inspector  to  insist  upon  entering  the 
premises  at  night  to  discover  a  case  of  scarlet  fever 
or  measles.  On  the  contrary,  so  serious  may  the  plague 
become  in  a  community  that  even  unusual  hours  of 
inspection  might  be  justified.  In  the  ordinary  case  of 
infectious  disease  the  cost  of  inspection  is  not  assessed 
against  individuals  nor  the  owners  of  property.  The 
inspection  of  a  dairy  district  may  be  as  strictly  a 
quarantine  measure  as  is  the  inspection  of  an  ordinary 
city  house  suspected  of  containing  a  case  of  diphtheria. 
But  the  inspection  of  the  dairy  district  is  partially  a 
commercial  proposition  and  in  the  interest  of  the  dairy 
company.  If  infection  be  permitted  to  get  into  a  dairy 
territory  so  that  the  milk  becomes  dangerous  for  con- 
sumption, it  may  result  in  the  total  prohibition  of  that 
article  of  commerce  on  the  part  of  the  usual  customers. 

T2  C.  W.  &  V.  Coal  Co.  v.  Peo-  «  Commonwealth  v.  Carter,  132 

pie,  181  111.  270;   St.  Louis  Cons.       Mass.  12. 

Coal  Co.  v.  Illinois,  185  U.  S.  203;  ?*  Austin   v.    Murray,    33    Mass. 

Railway  v.   Ala.,    128   U.   S.   96;       (16  Pick.)   121. 
Morgan  v.   Louisiana,   118   U.   S. 
255;  Train  v.  Boston  Disinfecting 
Co.,  144  Mass.  523. 


QUARANTINE   AND   ALLIED   SUBJECTS  601 

The  inspection  is  a  sort  of  health  insurance;  it  is  a 
commercial  proposition  for  the  company;  it  is  insurance 
for  the  consumer.  Very  properly,  therefore,  the 
ordinance  relative  to  the  license  of  the  dealer  may 
require  periodical  inspection,  and  may  charge  that 
inspection  up  to  the  dealer.  He  will  naturally  and 
properly  add  the  cost  of  inspection  with  the  other 
expenses  of  milk  production  and  receive  full  liquida- 
tion from  his  customers  in  the  usual  course  of  business. 
§  412.  Removal  of  cases.  Under  the  direction  of  the 
mayor  of  Bangor  in  Maine  a  police  officer  and  a  city 
physician  took  a  child  sick  with  small-pox  out  of  its 
mother's  arms,  and  carried  it  to  the  pest-house.  Action 
for  trespass  was  brought  against  them,  and  dismissed 
by  the  court  because  the  statute  permitted  the  health 
officer  of  the  town  to  make  such  removal  of  a  person 
dangerous  to  public  health.  But  the  court  called  atten- 
tion to  the  fact  that  the  action  would  not  have  been 
dismissed  except  for  the  fact  that  this  specific  author- 
ity was  given  in  the  statutes.75  In  an  early  case  in 
Maryland  the  court  held  that  the  officer  must  send  the 
patient  to  a  hospital  if  in  his  opinion  such  a  course 
were  necessary,  and  it  further  held  that  the  health 
officer  alone  could  tell  how  much  it  was  necessary  to 
do,  and  the  captain  of  the  boat  on  which  the  small-pox 
had  been  found,  must  pay  the  bill.76  In  State  v.  City 
of  New  Orleans,77  the  legislative  power  of  the  state  to 
decide  where  its  small-pox  patients  were  to  be  treated 
was  upheld.  In  Hengehold  v.  Covington,78  the  court  of 
appeals  upheld  the  right  to  remove  patients,  and  in 

"Haverty  v.  Bass,  66  Me.  71.  "  27  La.  521. 

76  Harrison   v.   Mayor  of   Balti-  78  108  Ky.   752. 

more,  1  Gill,  264. 


602  PUBLIC    HEALTH   ADMINISTRATION 

Twyman's  Administrator  v.  Frankfort,  the  same 
court,79  found  that  the  city  was  not  liable  for  the  death 
of  a  patient  from  small-pox  as  the  result  of  being  taken 
"from  a  comfortable  home  to  the  pest-house  used  for 
small-pox  patients,  which  was  badly  crowded,  poorly 
ventilated,  and  wholly  unfit  for  the  purpose,  for  which 
it  was  used. ' '  According  to  the  general  principles  any- 
thing which  is  done  by  the  state  or  a  portion  of  the 
state  in  its  purely  governmental  capacity  may  not  be 
the  subject  of  an  action  in  tort.  (§§  357-359.)  "The 
municipal  corporation  in  all  these  and  like  causes  rep- 
resents the  state  or  the  public.  The  police  officers  are 
not  the  servants  of  the  corporation,  and  hence  the  prin- 
ciple of  respondeat  superior  does  not  apply,  and  the 
corporation  is  not  liable  unless  by  virtue  of  the  statutes 
expressly  creating  the  liability. ' ' 80  Unquestionably 
this  is  correct  law,  and  so  long  as  the  health  officials 
use  due  care  and  diligence  they  would  be  exempt  from 
any  action.  On  the  other  hand,  it  would  seem  that  a 
health  officer,  who  so  far  lost  his  head  as  to  take  a 
small-pox  patient  from  a  "comfortable  home  to  a 
crowded,  poorly  ventilated  pest-house,"  might  very 
properly  be  liable  for  any  damages  which  might  accrue. 
But  such  unwholesome  conditions  should  be  proven  by 
professional  testimony  rather  than  by  lay  opinion.  We 
know,  for  example,  today  that  plenty  of  fresh  air  is  far 
more  important  in  the  treatment  of  pneumonia  and 
other  diseases  than  would  be  a  warm  house.  According 
to  lay  opinion  a  case  might  have  been  exposed  to  dan- 
ger, when  in  fact  he  is  put  in  the  best  circumstances 

79  117  Ky.  518.  cambia  Co.  Bd.  of  Health,  28  Fla. 

so  Taylor  v.  City  of  Owensboro,       26,  13  L.  E.  A.  549. 
98   Ky.    271;    also   Forbes   v.    Es- 


QUARANTINE   AND   ALLIED   SUBJECTS  603 

for  recovery.  A  statement  made  in  a  New  York  case 
seems  to  be  very  important,  even  though  permission  for 
removal  be  found  in  the  statutes.81  The  court  said: 
"A  person  sick  of  an  infectious,  or  contagious  disease 
in  his  own  house,  or  in  suitable  apartments  at  a  public 
hotel  or  boarding  house"  is  not  a  nuisance.  In  other 
words,  necessity  for  removal  must  be  found  in  the 
danger  of  spread  of  infection. 

A  board  of  health  may  be  enjoined  from  removing 
tenants  and  closing  up  houses  where  it  is  not  justified 
by  the  existence  of  a  pestilential  disease.82  It  was  held 
that  under  the  Iowa  statutes  a  local  board  of  health  is 
not  justified  in  removing  a  case  of  infectious  disease 
into  the  jurisdiction  of  another  board,  even  onto  prop- 
erty owned  by  the  first  mentioned  corporation.83  In 
Texas,  on  the  other  hand,  it  was  stated  that  the  right  of 
a  city  council,  acting  under  legal  authority,  to  enact 
an  ordinance  providing  for  the  removal  from  the  city 
limits  of  persons  with  contagious  diseases,  is  not  to  be 
questioned.  If  the  continuance  of  such  persons  in  the 
city  is  incompatible  with  the  safety  of  the  inhabitants, 
the  city  or  its  agents  may  remove  them,  but  every  rea- 
sonable provision  must  be  made  for  their  safety.  If  the 
city  authorities  cause  the  removal  of  a  person  with 
contagious  disease,  and  in  doing  so  fail  to  exercise  the 
care  and  precautions  the  circumstances  demand,  and 
death  results,  they  are  responsible,  even  though  acting 
under  a  city  ordinance.84 

The  time  has  passed  for  the  hysterical  fear  of  infec- 

8i  Bloom  v.  Utiea,  2  Barb.  104.  §4  Aaron    v.    Broiles  -et    ah,    64 

82  Eddy  v.  Board  of  Health,  10       Tex.  316. 
Phila.  94. 

83  Warner  v.  Stebbins,  82  N.  W. 
457. 


604  PUBLIC   HEALTH   ADMINISTRATION 

tious  disease.  There  is,  in  the  light  of  present  knowl- 
edge, perhaps  less  justification  for  the  removal  of  the 
patients,  if  they  may  be  in  favorable  surroundings, 
and  if  the  regulations  of  the  health  department  will  be 
observed.  Vaccination  offers  a  safe  and  sure  protec- 
tion against  small-pox,  and  there  are  measures  which 
at  least  aid  in  the  protection  against  other  diseases.  If 
the  case  be  protected  from  stegomyia  mosquitoes  there 
would  be  no  excuse  for  the  removal  of  a  yellow  fever 
patient.  It  must  be  remembered  that  there  is  always 
a  possibility  that  an  infectious  disease  may  be  carried 
to  healthy  persons  through  the  agency  of  insects,  such 
as  flies,  mosquitoes,  bedbugs,  lice,  fleas,  ticks,  etc.  It 
may  therefore  be  true,  that  even  if  the  patient  be  in 
what  would  ordinarily  be  considered  good  surround- 
ings, isolation  might  be  more  perfectly  obtained  else- 
where, and  the  public  health  be  thus  more  perfectly 
guarded. 

§  413.  Pest-houses.  Sometimes  conditions  are  such 
that  it  may  be  necessary  for  the  health  officer  either  to 
remove  the  patient  to  some  house  especially  provided 
or  else  to  take  possession  of  the  home,  and  thus  estab- 
lish a  temporary  hospital.  In  the  state  of  Washington 
it  was  held  that  a  qualified  health  officer  of  a  county 
would  have  power  to  seize  a  private  building  in  which 
to  confine  a  small-pox  patient  without  express  author- 
ization from  the  county  board  of  health.85  It  has  been 
held  that  a  board  of  health  has  no  authority  to  take 
possession  of  a  dwelling  without  consent  of  the  owner 
and  occupant  and  to  use  such  house  as  a  hospital  for 
the  care  of  a  person  found  sick  with  an  infectious  dis- 
ss Brown  v.  Pierce  Co.,  28  Wash. 
345. 


QUARANTINE   AND   ALLIED   SUBJECTS  605 

ease.86  The  house  may  be  seized  under  eminent  domain 
and  all  persons  therein  put  under  police  regulation,  but 
being  under  eminent  domain  presupposes  compensation 
from  the  health  department  to  the  owner  or  occupant. 
(§  171).  The  difference  between  taking  property  under 
police  power  and  under  eminent  domain  is  that  in  the 
first  case  the  governmental  body  is  seeking  to  abate  the 
nuisance;  in  the  second,  to  use  the  property  for  the 
public  good.  In  a  similar  manner  where  a  small-pox 
hospital  was  established  on  property  adjoining  the 
plaintiff's  premises,  and  a  rope  was  placed  around  his 
doorway  without  his  permission,  use  being  made  of  the 
plaintiff's  property  for  the  passage  of  ambulances,  etc., 
it  was  held  that  the  board  were  liable.87 

A  city  board  of  health  is  not  authorized  to  transfer 
one  infected  with  a  dangerous  disease  within  the  juris- 
diction of  another  board.88  The  code  of  Iowa  provided 
that  cities  might  acquire  and  hold  grounds  outside  of 
the  city  limits  for  use  as  a  hospital ;  but  a  township  in 
which  such  grounds  may  be  located  may  restrain  such 
action  for  the  reason  that  the  city  was  about  to  create 
a  nuisance  when  it  was  about  to  use  the  property  for 
the  establishment  of  a  pest-house.89  A  county  board  of 
health  is  entitled  to  the  custody  of  the  county  pest- 
house,  in  which  small-pox  patients  are  confined.90 

A  case  arising  in  Wisconsin  illustrates  conditions 
which  are  frequently  met  by  health  authorities.     A 

86  Spring  v.  The  Inhabitants  of  so  Warner    v.    Stebbins,    111    la. 

Hyde  Park,  137  Mass.  554;  Hersey  86;   Summit  Township  v.  Jackson, 

v.  Chapin,  162  Mass.  176;   Dooley  117  N.  W.  545. 

v.  Kansas  City,  82  Mo.  444.  so  Henderson    County    Board    of 

"  Barry  v.  Smith,  191  Mass.  70.  Health  v.  Ward,  107  Ky.  477. 

ss  Warner    v.    Stebbins,    111    la. 
86. 


606  PUBLIC    HEALTH   ADMINISTRATION 

domestic  servant,  employed  in  a  hotel,  was  stricken 
with  the  small-pox,  died  and  was  buried  from  the  hotel. 
Some  of  the  respondent's  goods,  supposedly  infected, 
were  removed  and  destroyed,  at  the  instance  or  with 
the  consent  of  the  respondent.  The  general  law  gave 
to  the  board  of  health  authority  to  remove  the  patient 
to  a  separate  building,  but  it  also  provided  that  if  the 
patient  be  too  sick  to  be  moved  the  board  shall  make 
like  provision  where  he  is.  When  removed  the  patient 
is  to  be  provided  with  nurses  and  other  necessaries, 
''which  are  to  be  a  charge  to  him,  or  the  parent,  or 
other  person  liable  for  his  support."  The  case  arose 
over  the  attempt  of  the  respondent,  the  owner  of  the 
hotel,  to  collect  from  the  city  damages  for  loss  of  busi- 
ness, and  for  property  destroyed,  etc.  Plainly  there 
was  no  attempt  in  the  statute  to  shift  the  responsibility 
for  the  expense  in  caring  for  such  a  case.  "We  cannot 
sanction  the  notion  which  seems  to  have  prevailed  here, 
that  a  domestic  servant,  as  such,  may  be  regarded  as  a 
pauper  or  an  outcast.  The  deceased  was  a  member  of 
the  respondent's  household,  entitled  to  consideration 
and  protection  as  such.  She  was  not  ejected  in  life 
from  the  respondent's  house;  and  it  is  not  a  question 
here  whether  she  could  have  lawfully  been  so  ejected, 
as  she  surely  could  not  have  been  humanely,  in  her 
extremity.  *  *  *  We  hold,  and  it  is  enough  for 
this  case,  that  the  appellant  did  not  confiscate  the 
respondent's  household  goods  which  were  burned,  and 
is  not  liable  to  her  for  them,  or  for  other  damages 
accruing  to  her  by  reason  of  the  sickness  of  the 
deceased." 91  In  Illinois  it  was  held  that  a  city  has  no 

9i  Kollock   v.   Stevens  Point,   37 
Wis.  348. 


QUARANTINE   AND   ALLIED    SUBJECTS  607 

authority  in  its  corporate  character  to  maintain  a  hos- 
pital. Its  conduct  of  a  hospital  was  therefore  in  its 
governmental  capacity,  for  charitable  purposes,  and  it 
could  not  therefore  be  held  liable  for  the  negligence 
of  its  employees.  If  the  hospital  were  conducted  for 
profit,  those  so  conducting  it  were  exceeding  their  law- 
ful authority,  and  the  city  could  not  be  held  liable  for 
negligence  on  the  part  of  those  conducting  it,  or  their 
employees.92  A  municipal  corporation  having  power 
to  "remove  or  confine  persons  having  infectious  or  con- 
tagious diseases,"  has  power  to  rent  a  building  for 
small-pox  patients.93  So  also,  in  Missouri  it  was  held 
that  a  city  ordinance  giving  the  board  of  health  gen- 
eral supervision  over  the  health  of  the  city  includes  the 
power  to  rent  a  building  to  be  used  as  a  hospital,  to 
protect  the  city  from  an  infection  of  cholera.94  But  in 
New  York  it  was  held  that  the  authority  of  a  board  of 
health  to  "procure"  suitable  places  for  the  reception  of 
persons  with  contagious  diseases  does  not  extend  to  the 
purchase  of  land  for  that  purpose.95  In  Iowa  it  was 
held  that  in  order  to  isolate  a  patient  he  may  be  re- 
moved to  a  separate  house.  If  no  suitable  house  may 
be  had,  or  if  a  temporary  pest  house  may  be  erected  at 
less  cost  than  the  rent  of  such  house,  the  board  of 
health,  in  the  exercise  of  wise  discretion  may  provide 
such  a  building,  and  the  expense  thereof  is  a  part  of 
the  expense  incurred  in  rendering  effective  provision 
for  the  safety  of  the  inhabitants,  and  it  is  charge- 
able to  the  county.96     In  Massachusetts  the  general 

sa  Tollefson  v.  Ottawa,  81  N.  E.  94  Aull  v.  Lexington,  18  Mo.  401. 

283.     See  also  Having  v.  Coving-  95  People  v.   Monroe  County,   18 

ton,  78  S.  W.  431.  Barb.  567. 

a3  Anderson  v.  O 'Conner,  98  Ind.  96  Staples    v.    Plymouth    County, 

118.  17  N.  W.  569. 


608  PUBLIC    HEALTH   ADMINISTRATION 

statutes  authorize  the  taking  of  land  for  a  hospital,  and 
the  statute  was  upheld  as  constitutional.  "A  statute 
authorizing  a  city  to  take  land  for  a  hospital  for  the 
treatment  of  contagious  diseases,  although  an  exercise 
of  the  right  of  eminent  domain  so  far  as  it  affects  the 
owner  of  the  land  taken,  is  in  its  general  purpose  an 
exercise  of  the  police  power  for  the  protection  of  the 
public  health.  In  this  Commonwealth  a  city  has 
authority  without  special  legislation  to  erect  a  hospital 
for  the  treatment  of  contagious  diseases  on  land  pur- 
chased for  that  purpose. ' '  Such  a  hospital  is  under  the 
supervision  of  the  board  of  health,  and  in  the  absence 
of  proof  it  will  not  be  presumed  to  be  a  nuisance,  pub- 
lic or  private.97  Boards  of  health  have  no  authority 
for  converting  vessels  into  hospitals,  nor  to  assume 
control  and  possession  of  them  to  the  exclusion  of  the 
owner,  and  therefore  cities  are  not  liable  for  damages 
caused  through  such  taking  of  possession  by  city  offi- 
cers.98 The  placing  of  a  woman  afflicted  with  leprosy 
in  a  private  house  of  a  laborer  who  is  not  an  officer  of 
the  city  does  not  amount  to  establishing  a  hospital  for 
the  isolation  and  treatment  of  contagious  diseases  as 
permitted  by  the  statutes.  The  power  to  erect  and 
maintain  hospitals  does  not  justify  the  making  of  a 
contract  for  keeping  such  patients  at  a  private  house 
located  on  city  land  in  a  settled  district,  since  this 
would  tend  to  facilitate  the  spread  of  the  disease 
instead  of  protecting  the  community.99  Since  our 
scientific  views  of  the  contagiousness  of  leprosy  are 

97  Manning  v.  Bruce,  186  Mass.  Spring  v.   Hyde   Park,   137   Mass. 

282.  554. 

ss  Mitchell  v.  Rockland,  41  Me.  99  Baltimore    v.    Fairfield    Imp. 

363;    45    Me.    496;    52    Me.    118;  Co.,   39   Atl.   1081. 


QUARANTINE  AND   ALLIED   SUBJECTS  609 

being  materially  modified,  the  value  of  this  decision  is 
open  to  question.100 

Hospitals  are  not  per  se  nuisances,  though  they  may 
become  such  and  be  subject  to  injunction.1  But  in 
emergency  the  city  should  not  be  enjoined  from  using 
a  park  building  for  a  pesthouse.2  A  pesthouse  in  close 
proximity  to  a  public  school  is  a  nuisance,  and  the 
authority  vested  in  the  county  authorities  to  maintain 
a  pesthouse  does  not  authorize  them  to  maintain  a 
nuisance.3  Persons  who  have  not  had  small-pox,  such 
as  those  sick  with  typhus,  may  be  sent  with  small-pox 
patients  to  a  hospital,  in  the  reasonable  discretion 
vested  in  the  health  officer.4 

It  was  held  in  a  Massachusetts  case  that  the  members 
of  a  board  of  health,  acting  in  a  quasi-judicial  manner 
in  the  location  of  a  small-pox  hospital,  could  not  be  held 
personally  liable  for  error  in  judgment;  but  if  by  rea- 
son of  their  neglect,  if  the  hospital  became  a  nuisance, 
by  virtue  of  their  malfeasance  or  misfeasance,  as  dis- 
tinguished from  nonfeasance,  they  might  be  held  per- 
sonally liable  for  such  injury  as  might  appear.5  No 
action  can  be  brought  against  a  city  or  town  for  the 
illegal  taking  possession  of  a  house,  to  be  used  as  a 
pest  house; 6  and  where  a  house  was  so  taken,  because 
there  was  a  case  of  small-pox  therein,  and  then  a  lease 
was  made  out,  and  rent  paid,  the  owner  was  estopped 

100  See  Kirk  v.  Wyman,  65  S.  W.  3  Thompson  v.  Kimbrough,  57  S. 

387.  W.  328. 

i  Barnard    v.    Sherley,    135    Ind.  *  Harrison   v.   Baltimore,   1    Gill, 

547;  Manning  v.  Bruce,  186  Mass.  264. 

282;   Stotler  v.  Bochelle,   109  Pac.  5  Barry  v.  Smith,  77  N.  E.  1099. 

788;  State  v.  Trenton,  63  Atl.  897.  e  Lynde  v.  Rockland,  66  Me.  309; 

2  Manhattan  v.  Hessin,  105  Pac.  Bloom  v.  Utica,  2  Barb.  104. 
44. 


610  PUBLIC   HEALTH   ADMINISTRATION 

from  claiming  damages  to  property; 7  but  where  mort- 
gaged property  was  leased  for  a  pest  house  the  holder 
of  the  mortgage  might  reasonably  recover  for  the 
amount  that  the  property  was  decreased  in  value.8  The 
Massachusetts  statutes  are  not  intended  to  give  the 
health  officials  authority  to  take  possession  of  prop- 
erty without  the  consent  of  the  owner,  but  it  is  expected 
that  if  a  case  of  small-pox  occurs  which  cannot  safely 
be  moved,  a  contract  will  be  made  for  the  patient's  care 
and  comfort  where  he  is;  if  so,  others  may  be  moved, 
and  suitable  precautions  taken.9  The  failure  of  a  city 
to  provide  a  small-pox  hospital  does  not  prevent  it  from 
recovering  in  an  action  against  another  city,  for 
expenses  incurred  in  caring  for  a  small-pox  patient 
having  a  settlement  in  the  defendant  city.10  In 
Massachusetts  we  find  a  decision  to  the  effect  that  the 
owner  of  a  vessel  under  quarantine  regulations  is  not 
liable  for  the  expenses  of  a  seaman  at  a  hospital,  to 
which  he  had  been  transferred  by  order  of  the  board 
of  health  of  a  town,  and  which  was  under  their  care.11 
This  is  contrary  to  the  classical  case  of  Harrison  v. 
Baltimore,113,  and  also  to  Board  of  Health  v.  Loyd.llb 
§  414.  Disinfection.  After  the  conclusion  of  a  case 
of  infectious  disease  it  has  been  customary  to  use  some 
variety  of  disinfection  of  the  premises,  furniture,  and 
clothing,  and  of  anything  else  which  may  have  come  in 
contact  with  the  case.  This  disinfection  may  be  accom- 

7  Sallinger  v.   Smith,   192  Mass.  "  Provineetown    v.    Smith,    120 

317.  Mass.  96. 

s  Delano  v.  Smith,  92  N.  E.  500.  "•»  1  Grill,  264. 

a  Brown  v.  Murdock,   140   Mass.  nb  1  Phila.  20. 

314. 

i°  Haverhill  v.  Marlborough,  187 
Mass.  150. 


QUARANTINE   AND   ALLIED   SUBJECTS  611 

plished  by  fumigation,  by  the  use  of  dry  heat  in  spe- 
cially constructed  machines,  by  live  steam,  by  exposure 
to  light  and  fresh  air,  or  by  destruction.  Sanitarians 
are  becoming  convinced  that  far  too  much  dependence 
has  in  the  past  been  put  upon  fumigation.  As  popu- 
larly conducted  it  is  worse  than  useless,  for  its  gives 
a  false  sense  of  security.  A  quarter  of  a  pound  of 
sulphur  burned  in  a  room  containing  one  thousand 
cubic  feet  makes  considerable  discomfort,  but  it  is  prac- 
tically useless  in  its  germicide  effect.  Eight  pounds 
should  be  used  in  such  space — four  at  the  very  least, 
yet  the  smaller  amount  is  more  likely  to  be  burned  by 
lay  disinfectors. 

There  is  no  doubt  as  to  the  fact  that  sulphur  fumes, 
or  formaldehyde  vapors,  will  kill  disease  germs  when  in 
an  active  state;  but  when  bacteria  are  in  the  spore 
stage  they  are  more  resistant.  Besides,  the  vapor  in 
a  room  may  not  easily  enter  the  cracks  in  the  floor  and 
wall,  which  often  serve  for  the  admission  of  fresh  air. 
Moreover,  it  is  well  known  today  that  the  disease  germs 
may  be  kept  alive  and  communicated  by  means  of 
insects.  Formaldehyde  does  kill  bacteria,  and  is  very 
often  used  by  health  officials  for  disinfection;  but  it 
frequently  simply  stupifies  insects  in  the  disinfected 
room.  For  such  reasons  there  is  a  tendency  on  the 
part  of  sanitarians  not  to  put  so  much  stress  upon 
fumigation,  especially  of  rooms,  unless  it  be  for  the 
destruction  of  vermin  with  the  sulphur  dioxid.  More 
stress  is  being  put  upon  the  use  of  hot  soap  and  water. 
However,  fumigation  is  still  a  recognized  measure,  and 
its  use  should  not  be  forcibly  resisted  when  ordered  by 
the  proper  authority.  It  would  seem  that  if  a  statute 
or  ordinance  call  for  "disinfection"  simply,  in  view  of 


612  PUBLIC    HEALTH    ADMINISTRATION 

the  present  state  of  knowledge  no  variety  of  fumiga- 
tion could  be  forced  upon  the  officer.  His  discretionary- 
judgment  should  determine  the  form  of  disinfection  to 
be  used.  Fresh  air  and  sunshine  are  bactericidal,  and 
clothing  may  sometimes  be  thus  effectually  disinfected 
by  hanging  out  of  doors,  in  a  place  not  exposing  others. 

For  washable  goods,  boiling  is  the  best  disinfection. 
Live  steam  may  be  used  to  disinfect  such  articles  as 
bales  of  rags.  Dry  heat  under  proper  precautions  is 
useful  for  many  other  articles.  Often  destruction  is 
the  simplest  and  best  method  of  dealing  with  infected 
articles,  especially  clothing. 

When  in  the  judgment  of  the  proper  health  official 
disinfection,  as  by  fumigation,  was  advisable,  even 
though  no  quarantine  had  been  established,  it  was 
clearly  within  the  discretion  of  the  officer  so  to  order, 
and  (in  Iowa)  the  county  is  bound  to  pay  for  such 
service,  though  the  amount  to  be  paid  may  be  left  to  a 
jury  for  determination  as  to  what  is  a  reasonable 
amount.*2  But  a  health  officer  is  not  himself  entitled 
to  extra  compensation  for  fumigation,  as  it  is  a  part 
of  his  official  duty.13  The  health  authorities  cannot  be 
held  liable  for  damages,  as  to  store  goods  accidentally 
injured  in  fumigation.14  Where  the  public  health  and 
human  life  are  concerned,  said  the  Maine  court,  the  law 
requires  the  highest  degree  of  care,  and  those  in  charge 
of  dangerous  diseases  like  small-pox  are  not  entitled  to 
experiment  to  see  how  little  disinfection  will  do; 15  but 
soon  after  that  the  same  court  also  said  that  the  failure 
of  a  health  officer  to  properly  disinfect  persons  exposed 

12  Sawyer  v.  Wapello  County,  i*  Allison  v.  Cash,  137  S.  W.  245; 
133  N.  W.  104.  143  Ky.  679. 

13  Tabor  v.  Berrien  County,  120  is  Seavy  v.  Preble,  64  Me.  120. 
N.  W.  588. 


QUARANTINE   AND    ALLIED    SUBJECTS  613 

to  small-pox  does  not  make  the  community  liable  for 
damages  caused  to  a  third  person  who  claims  he  con- 
tracted the  disease  through  contact  with  the  exposed 
person.16  There  is  no  conflict  between  these  cases.  If 
the  officer  violates  his  discretion  he  is  personally  liable, 
not  the  community.  In  the  light  of  present  knowledge, 
as  to  the  latter  case,  it  is  exceedingly  doubtful  whether 
a  person  may  contract  small-pox  from  a  person  who 
may  have  come  in  contact  with  a  case,  but  who  is  not 
himself  ill  with  the  disease. 

When  it  comes  to  interfering  with  interstate  or  for- 
eign commerce  there  is  not  so  much  liberty  for  local 
officials  as  to  disinfection.  The  authority  in  such  mat- 
ters must  rest  either  in  the  state  government,  or  some- 
times in  the  nation.  The  president  of  a  board  of  health, 
acting  without  authority  of  the  law  or  of  the  board, 
except  under  a  general  authority  to  act  in  emergencies, 
is  personally  liable  for  damages  caused  by  his  action 
in  ordering  the  fumigation  of  a  cargo  of  fruit,  where 
the  vessel  had  a  clear  bill  of  health  and  came  from 
a  port  in  the  West  Indies  where  no  sickness  was  known 
to  exist.17  It  was  held  in  Florida  that  a  county  board 
of  health  cannot  require  a  vessel  to  be  fumigated  or 
disinfected  unless  it  is  subject  to  and  put  in  quaran- 
tine.18 Seasonable  and  fair  expenses  for  fumigating 
an  infected  vessel  may  be  charged  against  the  vessel.19 
"When  the  health  authorities  have  furnished  proper 
materials  for  fumigating  a  vessel,  and  distributed  them 
around  the  steerage  quarters,  and  given  proper  instruc- 
tions before  leaving  the  vessel,  the  duty  devolves  upon 

is  Brown  v.  Vinalhaven,  65  Me.  is  Forbes   v.    Escambia    Co.    Bd. 

402.  of  Hth.,  28  Fla.  26. 

it  Beers  v.  Board  of  Health,  35  is  Harrison  v.  Baltimore,  1  Gill, 

La.  Ann.  1132.  264. 


614  PUBLIC    HEALTH   ADMINISTRATION 

the  captain  and  his  subordinates  to  attend  to  the 
removal  of  the  disinfecting  apparatus  and  see  that  the 
passengers  are  not  exposed  to  danger  from  this  source. 
The  captain  may  be  held  liable  for  negligence  in  leav- 
ing unprotected  poisons  within  reach  of  a  child. " 20  As 
to  the  necessity  for  the  fumigation  of  ships  it  must  be 
remembered  that  those  vehicles  of  travel  are  generally 
infested  with  rats,  and  that  rats  are  particularly  active 
in  spreading  the  bubonic  plague.  Effective  fumiga- 
tion with  the  sulphur  dioxid  kills  the  rats,  even  when 
it  may  not  kill  disease  spores.  Captains  often  protest 
that  their  ships  do  not  need  fumigation  for  that  pur- 
pose because  they  have  an  exceptionally  good  cat.  Such 
was  the  case  with  the  British  steamship  Ethelhilda, 
arriving  at  New  Orleans  March  18,  1914,  from  West 
Africa.  Nevertheless  the  government  surgeon  ordered 
fumigation.  When  the  vessel  was  again  entered,  dead 
rats  were  found  in  every  part  of  the  ship.  By  the 
irony  of  fate  the  cat  had  been  forgotten,  and  she  was 
found  in  the  cabin  with  twenty-four  dead  rats.21 

Certain  cargoes  of  rags  arriving  at  the  city  of  New 
York  were,  by  direction  of  the  collector,  sent  to  certain 
warehouses.  The  rags  were  disinfected,  and  the  charge 
for  lighterage  and  disinfection  was  demanded  from  the 
owners.  Held  that  the  charges  for  lighterage  and  dis- 
infection were  not  brought  within  the  statute,  as  they 
had  not  the  official  sanction  of  the  health  officer;  that 
therefore  the  warehouse  firm  had  no  lien  therefor,  and 
were  not  entitled  to  recover.22  The  Eevised  Statutes 
of  the  United  States  gave  no  authority  to  the  collector 

20  Kennedy  v.  Ryall,   67  N.  Y.  22  Lockwood  v.  Bartlett,  130  N. 

379.  Y.  340. 

aiKeprint    182,    Public    Health 
Eeports. 


QUARANTINE   AND   ALLIED    SUBJECTS  615 

to  take  possession  of  the  goods,  and  retain  possession 
of  them:  his  seizure  of  the  goods,  and  causing  them  to 
be  sent  to  the  Baltic  stores,  was  an  unauthorized  act. 
If  he  caused  them  to  become  disinfected,  he  became 
liable  in  damages.  But  it  was  held  that  the  collector 
simply  sent  them  for  disinfection  if  the  health  officer 
so  ordered — for  such  action  as  the  health  authorities 
might  see  fit  to  take,  and  his  action  was  therefore 
proper.  Since  the  health  officer  had  not  ordered  the 
disinfection,  the  company  had  assumed  the  responsibil- 
ity, and  had  no  claim.  Whether  the  health  officer  had, 
or  had  not,  issued  such  order  was  a  question  solely 
within  the  jurisdiction  of  the  state  courts.23 

In  the  case  of  clothing,  or  furniture,  for  example, 
which  have  come  in  contact  with  a  case  of  small-pox, 
the  real  nuisance  is  not  the  clothing,  nor  the  furniture, 
but  the  contaminations  which  they  may  have  acquired. 
The  real  nuisance  must  be  abated,  and  if  the  abatement 
requires  the  destruction  of  the  property,  since  that 
destruction  is  under  the  police  power,  in  the  absence  of 
specific  statutory  enactment  it  would  seem  that  the  offi- 
cials assume  no  responsibility  for  themselves,  nor  for 
their  respective  governmental  body,  as  to  compensation 
for  the  goods  destroyed.  Such  destructions,  except  as 
to  minor  articles,  would  seldom  be  deemed  necessary, 
and  the  health  official  should  not  let  a  hysterical  activ- 
ity force  him  to  disregard  the  employment  of  judicial 
discretion.  Whether  or  not  the  burning  of  wearing 
apparel  was  necessary  is  a  question  for  the  determina- 
tion of  the  jury  if  it  is  to  be  reviewed,  and  then  only 
tq  determine  whether  the  officer  exceeded  his  authority. 

23  Bartlett  v.  Lockwood,   160  U. 
S.  368. 


616  PUBLIC    HEALTH   ADMINISTRATION 

A  city  can  no  more  destroy  property  in  stamping  out 
an  epidemic  than  to  check  a  fire,  but  to  the  same  extent, 
and  with  exemption  from  liability  in  proper  cases.  The 
measure  of  damages  for  property  wrongfully  destroyed 
is  the  market  value ;  where  the  property  has  no  market 
value,  the  measure  of  damages  is  its  value  to  the  owner, 
not  what  it  would  cost  him  to  replace  it.24  In  a  Mass- 
achusetts case  the  judge  instructed  the  jury  that  the 
plaintiff  was  entitled  to  recover  what  the  property  was 
worth  at  the  time  it  was  taken,  without  taking  into 
account  how  much  the  value  had  been  affected  by  the 
exposure.25  However,  if  the  property  be  lawfully 
destroyed,  in  the  absence  of  statutes  allowing  compen- 
sation, because  it  is  an  exercise  of  police  power,  not  of 
eminent  domain,  no  compensation  is  due  the  owner, 
and  no  recovery  can  take  place  from  a  city,  and  much 
less  from  a  county.26 

In  the  state  of  North  Carolina  we  are  told,  "Under 
authority  to  make  rules  and  regulations  to  prevent  the 
spread  of  communicable  diseases,  county  authorities 
have  no  power  to  burn  a  dwelling  house  to  prevent  the 
spread  of  small-pox;  and  this  act,  being  outside  of  their 
corporate  powers,  they  would  not  be  liable  in  their 
corporate  capacity  to  an  action  therefor ;  nor  have  town 
commissioners  such  power  under  authority  to  have 
destroyed  or  disinfected  furniture  or  other  articles 
believed  to  be  tainted. " 27  So  far  as  known  a  house 
may  be  cleansed  from  small-pox  by  the  local  use  of  dis- 
infectants, but  when  it  comes  to  dealing  with  the  bu- 
bonic plague  we  have  another  element  to  deal  with. 

24  Dallas  v.  Allen,  40  S.  W.  324.      Trustee,    109    Va.    229;    Creier    v. 

25  Brown  v.  Murdoek,  140  Mass.      Fitzwilliam,  83  Atl.  128. 

314.  -7  Pritchard  v.  Morgantown,   36 

2«  Louisa    County    v.     Yancey 's      S.  E.  353. 


QUARANTINE   AND   ALLIED   SUBJECTS  617 

That  disease  is  spread  by  the  partnership  between  the 
flea  and  the  rat,  and  disinfection  must  there- 
fore include  the  extermination  of  both  members 
of  the  partnership.  This  is  often  a  practical  impos- 
sibility without  destroying  the  buildings.  This 
impossibility  is  found  particularly  where  the 
buildings  are  of  small  value,  and  poorly  con- 
structed. Well  constructed  buildings  may  be  rat- 
proofed  and  fumigated.  It  therefore  follows  that  in 
such  cases  the  health  department  may  order  such 
buildings,  so  infested  with  the  plague,  destroyed  by  the 
fire  department,  or  by  any  other  body  or  person.28  ' i  In 
an  action  on  a  policy  of  fire  insurance  for  loss  caused 
by  spread  of  a  fire  started  by  order  of  the  Board  of 
Health,  for  the  purpose  of  destroying,  as  being  infested 
by  plague,  certain  previously  condemned  buildings  sit- 
uated some  distance  from  the  insured  building,  an  ex 
parte  unexecuted  resolution  of  the  board  adopted  after 
the  commencement  of  the  fire,  that  all  buildings  in  the 
block,  which  included  the  insured  building,  were  so 
insanitary  and  infected  by  plague  as  to  require  destruc- 
tion, is  not  even  prima  facie  evidence  that  the  building 
in  question  was  so  insanitary,  or  so  much  of  a  nui- 
sance as  to  be  absolutely  valueless  in  the  eye  of  the 
law,  so  as  to  entitle  the  defendant  insurance  company 
to  a  judgment."29  The  city  council  has  no  exclusive 
jurisdiction  to  determine  what  constitutes  a  nuisance, 
and  in  destruction  of  a  house  they  are  limited  to  the 
abatement  of  that  which  is  in  fact  a  common  nuisance.30 
The  mayor  and  town  of  Des  Arc  were  sued  for  destruc- 

28  Ahana  v.   Ins.   Co.   of   North  29  Akwai  v.   Royal   Tns.   Co.,   14 

America,  15  Hawaii,  636;   Kwong  Ha.   533. 

Lee  Yuen  Co.  v.  Manchester  Fire  30  Hennessy  v.  City  of  St.  Paul, 

Assurance  Co.,  15  Ha.  704.  37  Fed.  565. 


618  PUBLIC   HEALTH    ADMINISTRATION 

tion  of  a  building  where  within  the  specified  time  after 
the  house  had  been  condemned  the  owner  had  failed  to 
abate  the  nuisance.  Held,  that  the  officers  were  within 
their  rights.31  But  a  house  must  be  shown  to  be  a  nui- 
sance before  it  can  be  destroyed.32  The  city  may  order 
a  building  infested  with  disease  destroyed  if  that  is 
the  only  method  for  preventing  the  spread  of  the  dis- 
ease.33 

§  415.  Expense  of  quarantine.  As  a  general  proposi- 
tion it  may  be  stated  that  in  as  much  as  quarantine  is 
a  public  affair,  and  for  the  benefit  of  the  community,  all 
the  reasonable  expenses  which  may  be  incurred  by  the 
officers  are  chargeable  upon  the  public.  In  practical 
application  there  are  many  problems  in  the  determina- 
tion between  public  and  private  duty,  and  as  to  limits 
of  authority.  Many  of  these  questions  are  settled  by 
enactment,  and  they  may  be  differently  ordered  in 
different  states.  This  difference  must  be  remembered 
in  looking  through  the  special  decisions.  For  example, 
according  to  different  usages  certain  of  the  expenses 
are  paid  by  the  city,  or  the  county,  or  by  the  state. 

Because  it  is  a  public  duty,  and  not  a  corporate  privi- 
lege, a  city  cannot  be  held  liable  for  any  injury  result- 
ing through  quarantine,  as  a  result  of  any  act  of  its 
officers.34  If  there  be  any  liability  it  must  be  a  per- 
sonal one. 

The  necessary  expenses  of  quarantine  are  a  public 
charge.35     The  discovery  of  a  contagious  disease,  like 

3i  Harvey  v.   Dewoody,    18  Ark.  44  Mo.  479 ;  Barbour  v.  Ellsworth, 

252.  67    Me.    294;    Beeks    v.    Dickinson 

32  Cole  v.  Kegler,  19  N.  W.  843.  Co.,  131  la.  244. 

33  Sings  v.  Joliet,  86  N.  E.  663.  35  Bardstown  v.   Nelson  County, 

34  Bichmond  v.  Long's  Admr.,  17  78  S.  W.  169;  Bellows  v.  Seneca 
Grat.  375;  Murtaugh  v.  St.  Louis,  Co.,  133  N.  Y.  586. 


QUARANTINE  AND  ALLIED  SUBJECTS  619 

small-pox  in  a  thickly  settled  community,  creates  an 
immediate  necessity  for  action  on  the  part  of  those 
charged  with  the  duty  of  preventing  its  spread,  and 
creates  a  liability  on  the  part  of  the  town  to  pay  any 
necessary  expense  incurred  by  its  health  board,  or  in 
the  absence  of  an  order  of  its  health  board,  the  expense 
incurred  by  its  " health  officer"  under  such  an  emer- 
gency.36 The  requirement  that  there  shall  be  a  board 
of  health  in  every  township  and  an  examination  of  the 
law  indicates  that  its  duties  cannot  be  discharged  with- 
out expenditure  of  money.  It  is  therefore  the  duty  of 
a  town  meeting  to  raise  funds  to  meet  such  expendi- 
ture.37 In  Iowa  it  was  held  that  the  county  is  respon- 
sible for  the  expenses  incurred  in  disinfecting  build- 
ings, even  when  no  quarantine  has  been  maintained.38 
In  Tennessee  medical  assistance  rendered  to  persons 
quarantined  by  the  board  of  health  is  a  county 
charge.39  In  Oklahoma  it  was  said  that ' '  One  member 
of  a  board  of  county  commissioners  cannot  bind  the 
county  to  pay  for  services  of  a  physician  without  first 
having  been  authorized  thereto  by  a  majority  of  the 
board  while  in  session. ' ' 40 

The  expense  of  caring  for  quarantined  patients  in 
North  Carolina  is  a  county  charge,  even  though  the 
patient  be  not  in  a  county  pest  house,  but  in  a  private 
concern.41  The  liability  of  a  county  to  pay  for  nurses, 
medical  attendance,  etc.,  in  cases  of  quarantine  does 

36  Knightstown  v.  Homer,  75  N.  *o  Mahr  v.  Pottawatomie  County, 
E.  13.                                                            110  Pae.  751. 

37  Allen  v.  Bernards,  28  Vr.  303.  a  Copple  v.  Davie  County,  50  S. 

38  Sawyer    v.     Wapello    County,       E.  574. 
133  N.  W.  104. 

39  Allen  v.  DeKalb  Co.,  61  S.  W. 
291. 


620  PUBLIC    HEALTH   ADMINISTRATION 

not  depend  upon  the  action  of  the  town,  in  Minnesota. 
That  the  town  has  in  fact  so  provided  them  is  all  that  is 
necessary.42  Counties  in  that  state  are  by  statute  liable 
to  townships  for  necessary  expenses  incurred  for  medi- 
cal treatment,  and  for  maintaining  quarantine  of  a  resi- 
dent family  sick  with  contagious  disease.43  "The 
employment  of  physicians  was  within  the  authority 
conferred  by  the  act,  and  that  subsequent  ratification 
made  such  claim  a  valid  charge  against  the  county. ' ' 44 
Similarly,  when  in  the  state  of  Texas  a  county  failed 
to  appoint  a  county  physician  after  the  incumbent  had 
resigned,  and  a  rauchman  furnished  a  physician,  medi- 
cines, and  provisions  to  employees  who  were  quaran- 
tined for  small-pox,  it  was  held  that  under  the  statutes 
the  county  was  liable  to  the  ranchman  for  his  expen- 
ditures, having  apparently  consented  to  this  provision. 
The  services  of  the  ranchman  were  not  entirely  volun- 
tary, but  were  forced  upon  him  by  the  failure  of  the 
county  to  supply  the  needs  of  the  men  through  its  phy- 
sician.45 "The  county  board  can,  when  acting  within 
the  jurisdiction  conferred  on  it  by  statute,  bind  the 
county.  But  the  health  officer  has  no  such  power.  He 
is  merely  a  ministerial  officer,  a  creature  of  the  board, 
charged  and  instructed  with  carrying  out  its  orders. 
His  duties  are  defined  and  fixed  by  the  statute,  and  it 
is  only  when  he  acts  under  the  order  and  direction  of 
the  county  board  that  the  county  is  responsible  for 
expenses  incurred  or  made  by  him.    Not  only  so,  but 

*2  Montgomery  v.  LeSuer  Coun-  44  Schmidt  v.  Stearns  County,  34 

ty,  32  Minn.  532.  Minn.   112. 

43  Louriston   v.   Chippewa   Coun-  45  King  County  v.    Mitchell,    71 

ty,  93  N.  W.  1053 ;  Appeal  of  Bd.       S.  W.  610. 
of  Hth.  Buffalo  Lake,   95   N.  W. 
221;  Iosco  v.  Waseca  County,  100 
N.  W.  734. 


QUARANTINE   AND   ALLIED    SUBJECTS  621 

he  must  have  the  authority,  in  each  case,  in  advance  of 
any  action  on  his  part  looking  toward  establishing 
quarantine,  or  doing  any  other  act  for  which  a  claim 
is  to  be  made  against  the  county."46  In  the  absence 
of  statutory  authority,  or  of  action  by  the  board,  the 
secretary  of  a  county  board  of  health  cannot  bind  the 
county  for  the  expense  of  abating  a  nuisance.47  There 
is  no  common  law  liability  of  counties  to  care  for  the 
poor,  nor  to  meet  the  expenses  of  quarantine.  All 
authority  of  the  county  must  be  found  in  the  statutes. 
When  the  statutes  impose  the  care  of  quarantine  upon 
"the  proper  board  of  health,"  since  there  is  no  statu- 
tory authority  for  a  county  board  of  health  it  neces- 
sarily follows  that  the  county  has  no  liability  in  the 
matter.48  In  Kentucky,  according  to  section  2059  of 
the  state  statutes  it  is  the  duty  of  every  city  having  a 
population  of  over  2,500  inhabitants,  to  appoint  a  city 
board  of  health.  Construing  this  section  with  section 
3490  it  is  the  opinion  of  the  court  that  it  is  incumbent 
upon  all  cities  of  over  2,500  inhabitants  to  care  for  and 
maintain  all  cases  of  contagious  disease  and  of  such 
other  matters  as  come  within  the  jurisdiction  of  the 
city  board  of  health,49  and  the  expenses  must  be  borne 
by  the  city  and  not  by  the  county. 

In  the  absence  of  statutory  provisions  cities  are  not 
entitled  to  be  reimbursed  by  the  state  for  expenses 
incurred  in  quarantine,  even  if  this  be  done  under  the 
direction  of  the  state  authorities.50  A  theatrical  troupe 

♦6  Hickman      County     v.      Sear-  49  Bell   County   v.    Blair,    50    S. 

borough,   149   S.  W.   1116.  W.  1104;  Pulaski  Co.  v.  Somerset, 

47  Martin  v.  Montgomery  Co.,  27  98  S.  W.  1022. 

lnd.  App.  98.  so  Geneva   v.    New    York    State, 

♦a  Martin     v.      Fond      du      Lac  128  N.  Y.  S.  470. 
County,   106   N.  W.    1095. 


622  PUBLIC    HEALTH   ADMINISTRATION 

came  to  the  city,  in  this  case,  and  on  the  state  board 
of  health  being  notified,  the  state  officials  advised  vac- 
cination and  quarantine.  In  doing  this  the  city  did 
only  that  which  it  was  expected  to  do  for  the  general 
good.  "A  minor  whose  legal  residence  was  in  another 
town  was  infected  with  small-pox  in  the  town  of  Brat- 
tleboro.  The  select  men  furnished  him  with  physi- 
cians, nurses,  and  necessaries,  he  being  unable  to  pay 
for  them,  but  his  father  sufficiently  able  to  do  so.  Held, 
in  an  action  brought  by  the  town  of  Brattleboro 
against  the  other  town  to  recover  said  expenses,  that 
the  latter  town  was  primarily  liable  to  the  town  of 
Brattleboro  for  whatever  sum  they  had  actually 
expended."51 

A  city  having  made  an  arrangement  with  the  county 
by  which  the  city  cases  are  taken  and  treated  at  the 
county  pest  house,  and  having  paid  therefor  its  pro- 
portion for  the  maintenance  of  the  pest  house,  the  city 
will  not  be  relieved  from  the  payment  of  its  propor- 
tionate expense  on  the  ground  that  the  arrangement  is 
void,  because  it  tended  to  create  a  debt  extending 
beyond  the  present  year,  and  to  bind  successors  in  office 
of  the  city.52  "Under  statutory  provisions,  the  con- 
version of  a  patient's  residence  into  a  hospital  by  the 
city  authorities,  without  consultation  with  him, 
exempts  the  patient  from  liability  for  medical  services, 
the  taking  of  his  house  by  the  city  being  tantamount 
to  assuming  responsibility  for  his  care  in  compliance 
with  the  provisions  of  the  law."53 

A  health  officer,  appointed  by  a  local  board  of  health, 

si  Brattleboro  v.  Stratton,  24  Vt,  53  Smith  v.  Hobb,  45  S.  E.  963. 

306. 

52  Macon  v.  Bibb  County,   75  S. 
E.  435. 


QUARANTINE   AND    ALLIED    SUBJECTS  623 

is  required  to  keep  supervision  of  a  case  of  infectious 
disease,  seeing  to  it  that  the  case  is  properly  isolated 
and  cared  for.  This  involves  expense,  and  implies  the 
authority  for  the  health  officer  to  contract  for  medical 
care  and  nursing  in  an  emergency  which  requires  im- 
mediate action.54  In  a  case  in  which  a  physician  was 
called  to  treat  a  case  of  diphtheria  and  to  quarantine 
the  family,  because  he  was  called  by  the  attending 
physician  of  the  family,  not  by  the  legal  authorities,  it 
was  held  that  the  county  was  not  legally  liable,  though 
it  was  so  morally.55  It  is  quite  common  to  provide 
that  the  expense  of  treatment  of  cases  of  infectious 
disease  shall  only  J)e  borne  by  the  community  when  the 
patient  is  unable  to  pay  them  himself.56 

"It  is  the  undoubted  duty  of  a  board  of  health 
created  for  the  purpose  of  preserving  the  public  health 
to  take  immediate  steps  in  case  of  an  epidemic,  not 
only  to  furnish  care  and  treatment  to  the  afflicted,  but 
to  protect  residents  of  the  town,  and  to  this  end  they 
may  incur  any  reasonable  expense. ' ' 57  The  town  is 
therefore  liable  for  the  pay  of  guards  employed  by 
the  health  officer;58  but  (Miss.)  a  claim  against  the 
county  as  a  quarantine  guard  is  not  maintainable  by 
suit,  unless  the  minutes  of  the  board  of  supervisors 
disclose  an  order  establishing  a  local  quarantine,  and 

s*  Hawthorne  v.  Cherokee  Coun-  N.    W.    908 ;    Farnsworth   v.    Kal- 

ty,  79  Kas.  295.  kaska  Co.,  56  Mich.  640;  Kellogg 

ss  Dykes  v.  Stafford  County,  121  v.  St.  George,  28  Me.  255;  Marsh 

Pae.   1112.  Co.  v.  Eosen  Co.,  101  N.  W.  164; 

56  Thomas  v.  Mason,  39  W.  Va.  Dodge  County  v.  Diers,  95  N.  W. 

526;  Laurel  County  Ct.  v.  Pening-  602;  Mclntire  v.  Pembroke,  53  N. 

ton,  26  Ky.  L.  124;  Jay  County  v.  H.  462;  Merty  v.  Columbus,  27  O. 

Fertich,  46  N.  E.  699;  Tweedy  v.  Cir.  Ct.  Rep.  822. 

Fremont     Co.,     68     N.     W.     921 ;  57  People  v.  Eno,  82  N.  Y.  520. 

Walker  v.  Boone  Co.,  97  N.  W.  ss  Keefe  v.  Union,  56  Atl.  571. 
1077;    Gill    v.    Appanoose   Co.,    25 


624  PUBLIC   HEALTH   ADMINISTRATION 

also  show  that  a  contract  for  such  services  was  made. 
The  record  must  also  show  that  the  claim  founded  on 
such  a  contract  was  presented  to  the  board  of  super- 
visors and  was  disallowed.59  In  Michigan  it  is  not 
necessary  that  when  expenses  are  incurred  in  the  care 
of  indigent  persons  sick  with  contagious  diseases  the 
municipality  shall  first  pay  the  claim  and  then  present 
it  to  the  board  of  supervisors,  but  the  claimant  may 
take  his  claim  direct  to  the  county  board.  Boards  of 
supervisors  have  no  power  to  reject  a  claim  for  serv- 
ices rendered  by  order  of  a  board  of  health  without 
giving  the  claimant  an  opportunity  to  be  heard  and  to 
present  proof  in  its  support.60  "The  auditing  of  bills 
incurred  by  the  public  in  case  of  communicable  dis- 
eases is  lodged  by  law  in  the  board  of  supervisors  of 
the  county.  The  local  board  of  health  is  required  to 
keep  an  itemized  and  separate  statement  of  expenses, 
and  render  the  same  to  the  board  of  supervisors  by 
filing  the  same  with  the  county  clerk.  The  entire 
responsibility  then  rests  on  the  board  of  supervisors 
to  pass  on  the  necessity  of  such  expenses,  the  services 
performed,  the  justice  and  reasonableness  thereof,  and 
to  allow  such  parts  thereof  as  the  board  shall  deem 
just."61  Under  the  Oklahoma  law  creating  boards  of 
health  it  becomes  the  duty  of  the  board  to  audit  and 
allow,  or  reject  or  modify,  charges  incurred  against 
the  county  by  the  board,  and  certify  them  to  the  county 
commissioners.  Individual  members  of  the  board 
have  no  power  to  certify  to  county  commissioners.62 
In  determining  what  is  a  reasonable  amount  to  allow 

ss  Marion  County  v.  Woulard,  27  si  Dawe  v.  Board  of  Health  of 

So.  619.  Monroe,  146  Mich.  316. 

so  Bishop  v.  Ottawa  Supervisors,  62  Cooke    v.     Board    of     County 

140  Mich.  177.  Commissioners,    13   Okla.   11. 


QUARANTINE   AND    ALLIED   SUBJECTS  625 

for  such  services  in  the  care  of  patients  sick  with  con- 
tagious disease,  the  rule  has  been  laid  down,  ''that 
the  plaintiffs  were  entitled  to  the  value  of  their  serv- 
ices according  to  the  market  value  for  such  labor  in 
other  fever  cases. ' ' 63 

The  matter  of  treatment  is  distinct  from  quaran- 
tine.64 The  act  of  quarantine  is  essentially  keeping 
the  person  under  arrest  until  danger  of  his  further 
spreading  the  disease  has  passed.  The  treatment,  in 
that  it  may  tend  to  cut  short  that  period  of  isolation, 
and  directly  reduce  the  contagiousness  of  the  poison, 
may  be  a  means  of  restriction,  and  so  be  a  part  of 
quarantine.  Besides  this,  the  attending  physician 
may  be  a  very  great  aid  in  keeping  the  patient  under 
full  control.  It  may,  therefore,  be  important  to  the 
health  service  to  have  the  case  in  the  medical  care  of  a 
proper  person.  In  some  sections  the  health  officer  may 
also  treat  the  case.  This  is  hardly  an  ideal  arrange- 
ment, for  the  reason  that  health  preservation  and  med- 
ical practice  are  essentially  widely  separated,  and  the 
same  man  is  seldom  proficient  in  both  branches.  The 
fact  that  a  city  council  provided  another  officer  to  fur- 
nish medical  attendance  in  the  execution  of  the  power 
of  quarantine  was  held  to  show  that  the  furnishing  of 
such  attendance  was  not  committed  to  the  health  offi- 
cers.65 Under  statutory  provisions  requiring  the  estab- 
lishment of  local  quarantine  by  the  county  physician 
when  proclaimed  by  the  county  commissioners,  and 
authorizing  him  to  select  the  necessary  attendance,  the 
county  physician  is  not  authorized  to  employ  another 

03  Marion    County   v.    Bonds,    99  Co.,  136  Mich.  425;  Stroye  v.  Glad- 

S.  W.  532.  win  Co.,  136  Mich.  425. 

«*  Cedar  Creek  v.   Wexford   Co.,  8S  Congdon  v.  Nashua,  72  N.  H. 

135  Mich.  124;  Pierce  v.  Gladwin  468. 


626  PUBLIC   HEALTH   ADMINISTRATION 

physician  to  render  medical  service  to  small-pox 
patients  at  the  county's  expense,  until  quarantine  is 
actually  declared  by  the  commissioners.66  In  Iowa  a 
written  order  for  the  performance  of  the  service, 
issued  before  the  service  is  actually  furnished,  is  a 
mandatory  requirement,  and  unless  the  physician  has 
such  a  written  order  it  is  a  complete  bar  to  his  recov- 
ery of  charges  for  his  services.67  So  in  Maine  it  was 
held  that  in  the  absence  of  an  express  contract  for 
such  service  by  a  proper  officer  in  behalf  of  the  town 
a  physician  cannot  recover  for  medical  services  ren- 
dered to  the  inhabitants  while  they  were  sick  with  the 
small-pox;68  but  in  Michigan  it  was  held  that  an 
express  agreement  is  not  necessary  for  the  health  offi- 
cer to  enable  him  to  recover  for  his  services  in  treat- 
ing patients  sick  with  contagious  diseases,  if  the  board 
knew  that  the  services  were  being  rendered  and  after- 
ward allowed  his  bill.69  The  board,  having  made  a 
contract  with  a  physician  to  furnish  medical  attend- 
ance and  medicines  for  the  indigent  of  the  district  at 
a  stipulated  amount,  cannot  be  compelled  to  pay  more 
for  extra  services  due  to  an  epidemic,  although  these 
extra  services  were  ordered  by  the  board  of  health, 
and  the  board  of  health  allowed  the  bill.70  Neither 
can  a  physician,  after  he  has  presented  his  bill,  his  bill 
has  been  audited,  and  he  has  received  without  pro- 
test the  amount  allowed,  claim  balance  as  service  ren- 
dered according  to  statute.     His  acceptance  acts  as  an 

ee  Barrett  v.  Hill  County,  74  S.  «9  Cedar  Creek  v.  Wexford  Co., 

W.  811.  135  Mich.  124. 

67  Euan  v.  Mahaska  County,  137  70  Zimmermann     v.      Cheboygan 
N.  W.  1003.  County,  95  N.  W.  535. 

68  Childs  v.  Phillips,  45  Me.  408. 


QUARANTINE   AND   ALLIED   SUBJECTS  627 

estoppel.71  In  Kentucky  the  employment  of  the 
physician,  guards,  nurses,  etc.,  for  a  pest  house  rests 
with  the  board  of  health.  The  authority  to  fix  the  com- 
pensation of  such  employees,  and  of  the  board  of  health 
itself,  rests  with  the  fiscal  court.  Neither  have  the 
right  to  act  in  an  arbitrary  manner,  and  the  physician 
having  been  rightly  appointed,  the  fiscal  court  should 
allow  reasonable  compensation  for  the  work  rendered, 
or  to  be  rendered.72  There  is  no  public  right  which 
permits  the  officer  to  interfere  with  the  privilege  of 
citizens  to  employ  such  regularly  authorized  practi- 
tioners of  medicine  as  they  may  choose,  nor  to  inter- 
fere with  the  right  of  regularly  licensed  practitioners 
to  practice  when  they  are  so  employed.73 

A  board  of  health  cannot  employ  one  of  its  own  mem- 
bers to  render  medical  services  in  an  epidemic  of  con- 
tagious or  infectious  disease.74  Neither  can  a  health 
officer  without  the  approval  of  a  board,  in  Wisconsin, 
bind  a  town  by  the  employment  of  a  physician  to 
attend  a  case  of  contagious  disease.75 

It  is  manifestly  impossible  for  the  health  officer  him- 
self to  be  personally  with  a  case  of  infectious  disease 
all  of  the  time.  It  has  therefore  been  generally  agreed 
that  the  public  may  employ  guards.  A  nurse  may  be 
a  most  efficient  guard,  and  therefore  the  employment 
of  nurses  for  service  in  the  care  of  cases  of  infectious 
disease  is  a  recognized  aid.  A  county  may  not  attempt 
to  avoid  payment  of  obligations  for  the  employment 

7i  Browne  v.  Livingston  County,  74  B  jelland  v.   Mankato,  127  N". 

85   N.   W.    745;    but   see   State  v.  W.  397. 

Steele,  57  Tex.  200.  75  Collier  v.  Town  of  Scott,  102 

72  Walker  v.  Henderson  County,  N.  W.  909 ;  also  Jacobs  v.  Elmira, 
65  S.  W.  15.  132  N.  Y.  Sup.  54. 

73  Trabue  v.   Todd   County,   125 
Ky.  809. 


628  PUBLIC   HEALTH   ADMINISTRATION 

of  nurses,  destruction  of  infected  clothing,  etc.,  on  the 
ground  that  the  patients  were  able  to  pay,  or  that  some 
of  the  taxpayers  thought  that  the  charges  were  too 
high.76  The  authority  to  prevent  the  spread  of  infec- 
tious disease  implies  authority  to  employ  a  nurse.77  A 
city  has  been  said  to  be  liable  for  the  expense  of  nurs- 
ing a  case  of  contagious  disease,  when  the  nurse  was 
employed  by  a  physician  who  was  not  the  regular 
health  officer,  acting  under  the  direction  of  the  secre- 
tary of  the  state  board  of  health,  the  emergency  jus- 
tifying the  measure.78  The  fact  that  the  Michigan 
statutes  provide  for  the  employment  of  "nurses"  in 
these  cases  does  not  compel  the  employment  of  a  nurse, 
nor  of  more  than  one  if  any  be  employed.  The  matter 
is  left  to  the  discretion  of  the  officers.79  In  a  case  in 
New  Hampshire  a  man  attempted  to  recover  for  the 
services  of  his  wife  as  nurse  in  caring  for  a  boarder 
who  had  the  small-pox.  The  claim  was  disallowed  as 
she  was  not  employed  by  the  health  officer  in  the 
case.80 

Since  a  city  has  power  to  provide  for  the  care  of  a 
case  of  infectious  disease,  it  has  the  power  to  create 
a  debt;  it  may  therefore  be  compelled  by  mandamus 
to  provide  the  funds  for  its  payment;81  but  though 
legal  provisions  make  all  necessary  expenses  for  local 
sanitation  a  public  charge,  and  though  they  authorize 
local  boards  of  health  to  compel  by  mandamus  proper 
action  by  the  city,  they  do  not  confer  upon  the  board 

76  Elliott  v.  Kalkaska  County,  58  79  Rohn  v.  Osmun,  106  N.  W. 
Mich.  452.  967. 

77  Frankfort  v.  Irwin,  72  N.  E.  so  Creier  v.  Fitzwilliam,  83  Atl. 
652;  Labrie  v.  Manchester,  59  N.  128. 

H.  120.  81  Thomas   v.    Mason,    20    S.    E. 

78  Monroe  v.  Bluffton,  67  N.  E.       580. 
711. 


QUARANTINE   AND   ALLIED    SUBJECTS  629 

of  health  an  unrestricted  power  to  determine  how 
much  money  it  should  spend  in  any  one  year,  the 
amount  being  determined  according  to  law  by  the 
mayor  and  council.82  The  acts  of  both  the  council  and 
the  board  of  health  are  subject  to  the  court  review  to 
determine  as  to  their  reasonableness. 

Under  the  Michigan  law  the  county  is  charged  with 
the  expense  of  all  indigent  persons  afflicted  with  con- 
tagious disease,  and  villages  are  entitled  to  recover 
from  the  county  expenses  incurred ; 83  but  the  village 
cannot  bind  the  county  over  and  above  the  charges 
preferred  by  the  health  officer  for  specific  services ; 84 
and  it  is  mandatory  for  the  board  of  health  to  keep 
an  itemized  account  of  the  expense  for  each  person. 
So  also  in  Minnesota  it  was  held  that  when  the  county 
physician  refused  to  attend  and  treat  a  person  sick 
with  an  infectious  or  contagious  disease,  a  city  health 
officer  was  justified,  for  the  purpose  of  restricting  the 
disease,  in  employing  a  physician,  and  the  expense 
incurred  may  be  recovered  from  the  county.85  On  the 
other  hand  in  New  Jersey  it  was  held  that  though  the 
patients  were  paupers,  the  city,  and  not  the  county, 
was  responsible  for  the  care  of  patients  sick  with  con- 
tagious diseases.86 

A  family  under  quarantine  is  prevented  from  earn- 
ing the  usual  income.  Since  they  are  kept  in  restric- 
tion for  the  common  benefit  it  has  sometimes  been 
claimed  that  the  community  is  in  duty  bound  to  pro- 

82  State  v.  New  Orleans,  27  So.  85  Mankato  v.  Blue  .  Earth 
572,  52  La.  Ann.  1263.  County,   92   N.   W.   405. 

83  St.  Johns  v.  Supervisors,  70  N.  86  Kockaway  Township  v.  Morris 
W.  131.  County,  52  Atl.  373. 

84  Durand  v.   Shiawassee   Super- 
visors, 132  Mich.  448. 


630  PUBLIC   HEALTH   ADMINISTRATION 

vide  for  all  their  necessities.  The  legislature  might 
make  such  provision,  but  ordinarily  it  is  expected  that 
the  head  of  the  household  will  care  for  all  the  mem- 
bers. In  the  same  way  a  vessel  is  liable  for  the 
expense  of  all  passengers  held  in  quarantine,  and  not 
those  only  who  are  infected.87  There  is  no  reasonable 
excuse  for  a  person  being  afflicted  with  the  small-pox 
as  vaccination  gives  ample  protection.  The  same  may 
be  true  relative  to  typhoid  fever,  though  the  preven- 
tive inoculation  for  that  disease  is  of  recent  accept- 
ance, and  by  no  means  general  as  yet.  There  is  little 
call  for  sympathy  for  families  afflicted  with  those  dis- 
eases; but  with  scarlet  fever,  for  example,  conditions 
are  very  different.  The  cause  is  not  yet  definitely 
known,  and  no  sure  protection  has  been  discovered. 
Innocent  persons  may  be  victims  to  such  a  malady, 
and  perhaps  the  community  might  reasonably  share 
in  the  expenses  of  the  misfortune.  Such  has  been  the 
view  taken  by  the  courts  in  some  cases.  Thus  in 
Iowa  it  was  said  that  when  quarantine  is  established 
the  cost  of  bedding,  food,  and  clothing  to  supply  the 
place  of  that  which  had  been  destroyed,  should  be  pro- 
vided for  those  not  actually  sick,  and  the  expense 
therefor  may  properly  be  included  in  the  county's 
liability.88  Likewise  a  Pennsylvania  court  recognized 
a  certain  degree  of  liability  for  the  care  of  all  those  in 
quarantine,  aside  from  the  patient.89 

There  is  another  reason  why  there  is  justice  in  pay- 
ing for  the  keep  of  the  well  persons  who  may  be  in 

87  Peterson  v.  Carter,  6  Ha.  283 ;  89  Borger  v.  Borough  of  Alliance, 
see    also    Minister    of    Interior    v.       28  Pa.  Sup.  Ct.  407. 

Haekfield  &  Co.,  4  Ha.  420. 

88  Clinton  v.  Clinton  County,  16 
N".  W.  87. 


QUARANTINE   AND   ALLIED    SUBJECTS  631 

quarantine  with  the  sick — there  may  ultimately  be 
some  question  as  to  the  right  of  the  health  department 
to  keep  healthy  individuals  in  quarantine.  Physicians 
have  less  confidence  today  that  disease  may  be  carried 
from  one  person  to  another  by  a  third  party.  That 
lessens  the  scientific  basis  for  the  confinement  of  such 
persons.  In  State  v.  Rackowski 90  it  was  said  that  un- 
der section  2549  of  the  General  Statutes  of  New  Jersey, 
giving  authority  to  quarantine  the  patient  sick  with 
scarlet  fever,  "Before  the  health  officer  can  order 
quarantine  he  must  have  reasonable  grounds  to  believe 
that  the  person  or  persons  ordered  into  confinement 
are  infested  with  a  contagious  disease."  Though 
another  section  gave  authority  for  the  confinement  of 
those  exposed  the  case  illustrates  what  may  easily 
happen.  At  the  best  statutes  are  imperfect,  and  if  it 
be  desirable,  as  it  certainly  seems  to  be  necessary  at 
present,  to  quarantine  all  of  those  exposed  to  certain 
diseases,  the  statute  providing  for  quarantine  should 
also  cover  those  exposed.  All  exposed  persons  should 
be  subject  to  quarantine,  though  in  many  cases  the 
strict  confinement  of  all  persons  may  not  be  necessary, 
nor  advisable. 

An  interesting  case  arose  in  Michigan  touching  the 
obligation  of  a  landlord  to  a  patient  sick  in  his  build- 
ing. The  patient  was  not  a  member  of  his  family;  she 
was  not  his  tenant,  nor  in  his  employ.  She  was  living 
with  the  janitor,  and  was  not  confined  to  her  bed.  She 
had  erysipelas,  and  the  physician  warned  the  tenants 
of  the  danger  of  having  the  patient  in  the  building. 
The  landlord's  duty  was  to  his  tenants,  and  he 
ordered  her  out  of  the  building.     She  sued  for  injury, 

90  86  Atl.   606. 


632  PUBLIC   HEALTH   ADMINISTRATION 

as  the  result  of  being  forced  to  leave.  The  court  found 
for  the  defendant,  as  he  was  guilty  of  no  legal  wrong.91 
§  416.  Vaccination.  Few  diseases  have  been  more 
subjected  to  judicial  inquiry  than  small-pox.  It  was 
a  loathsome  disease,  inspiring  great  dread  on  the  part 
of  the  people,  and  its  contagious  character  was  early 
recognized.  Under  modern  methods  it  has  lost  much 
of  its  disagreeable  features,  and  it  is  strange  that  the 
old  hysterical  fear  still  persists  among  the  lay  people. 
"Whereas,  when  formerly  it  made  its  appearance  in  a 
community  it  found  numerous  victims,  and  left  each 
badly  disfigured  for  life,  now  its  victims  are  few,  and 
mutilation  is  slight.  The  chief  change  relative  to  the 
disease  is  due  to  the  protective  influence  of  vaccina- 
tion. The  scientific  demonstration  of  the  protective 
value  of  this  slight  operation  is  clear  to  any  unprej- 
udiced observer  and  investigator,  and  has  been 
repeatedly  recognized  by  the  courts.  Since  the  police 
power  for  the  protection  of  the  inhabitants  of  a  state 
resides  in  the  state  government  it  naturally  follows 
that  the  legislature  may  take  such  means  as  seem  to  it 
reasonable  for  utilizing  such  power.  Thus  we  find  the 
state  of  North  Carolina  saying:92  "Statistics  taken 
by  governmental  authority  show  that  while  400  out  of 
every  1000  unvaccinated  persons,  exposed  to  the  con- 
tagion, are  attacked  by  it,  less  than  two  in  a  thousand 
take  the  disease  when  protected  by  vaccination  within 
a  reasonable  period.  There  are  those,  notwithstand- 
ing these  well  established  facts,  who  deny  the  efficacy 
of  vaccination,  as  there  are  always  some  who  will  deny 
any  other  result  of  human  experience,  however  well 

9i  Tucker   v.    Burt,    115    N.    W.  ^  State  v.  Hay,  126  N.  C.  999. 

722. 


QUARANTINE   AND   ALLIED   SUBJECTS  633 

established,  but  the  legislature,  acting  on  their  best 
judgment  for  the  public  welfare  upon  the  information 
before  them,  has  deemed  vaccination  necessary  for 
public  protection,  and  their  decision  being  within  the 
scope  of  their  functions  must  stand  until  repealed  by 
the  same  power." 

A  portion  of  the  prejudice  against  vaccination  is 
based  upon  the  evils  of  its  earlier  use.  When  the  virus 
was  taken  from  the  arm  of  one  patient  and  directly 
inserted  into  another  victim,  without  any  precaution- 
ary measures,  it  was  quite  possible  that  other  diseases 
aside  from  the  cow-pox  might  be  thus  communicated. 
Except  in  extreme  emergency  it  is  no  longer  justifiable 
to  make  use  of  the  humanized  virus.  The  supply  is 
now  taken  from  carefully  selected  calves,  after  scien- 
tific observation,  and  under  strict  aseptic  precautions. 
The  virus  is  most  carefully  guarded  from  contamina- 
tion, and  tested  before  being  issued  for  human  use. 
Any  intelligent  physician  uses  like  aseptic  methods  in 
performing  the  operation  of  vaccination.  He  is 
expected  to  cleanse,  antiseptically,  the  surface  where 
he  is  to  operate,  and  after  introducing  the  virus  he 
should  dress  the  surface  aseptically  until  nature  has 
sealed  the  wound.  The  antiseptic  cleansing  kills  dis- 
ease germs  which  may  be  upon  the  surface  of  the  skin; 
the  aseptic  dressing  prevents  the  entrance  of  germs 
into  the  open  wound.  After  the  pustule  has  been  pro- 
duced it  is  no  longer  considered  necessary  that  the 
various  septic  germs  should  have  undisputed  sway. 
Unfortunately,  there  are  those  who  pose  as  physicians, 
and  are  so  recognized  by  the  community,  though  they 
so  far  neglect  their  duty  to  their  patients  that  they 
have  failed  to  keep  up  with  the  advances  of  science. 


634:  PUBLIC    HEALTH   ADMINISTRATION 

Any  legitimate  objection  that  may  still  exist  against 
vaccination  must  largely  be  chargeable  to  these  negli- 
gent practitioners  and  their  ancient  methods.  The 
fact  remains  that  there  is  opposition  to  the  practice, 
and  to  some  degree  this  opposition  is  responsible,  not 
only  for  a  difference  in  legislation,  but  also  for  differ- 
ences in  interpretation. 

Granting  the  fact  that  vaccination  does  protect 
against  small-pox,  and  the  further  fact  that  this  opera- 
tion is  of  negligible  danger  as  compared  with  the  dis- 
ease which  it  is  intended  to  prevent  or  modify,  it 
naturally  follows  that  the  legislature  of  the  state  may 
enact  such  statutes  as  seem  reasonable  in  the  matter. 
Thus  the  Georgia  court  said: 93  "With  the  wisdom  or 
policy  of  vaccination,  we  have  nothing  to  do.  *  *  * 
The  legislature  has  seen  fit  to  adopt  the  opinion  of 
those  scientists  who  insist  that  it  is  efficacious,  and  this 
is  conclusive  upon  us."  This  legislative  authority  of 
the  states  in  the  matter  has  been  frequently  upheld, 
and  may  reasonably  be  considered  settled.94  Before 
the  Jacobson  case  came  before  the  Supreme  Court  of 
the  United  States  it  had  committed  itself  upon  this 
subject  in  an  obiter  dictum  in  the  case  of  Lawton  v. 
Steele,  95  saying  that  a  state  might  order  the  compul- 
sory vaccination  of  children.    In  a  number  of  cases 

ss  Morris  v.   Columbus,   102   Ga.  110  Pac.   137,   143  Cal.  658;   Bis- 

792.  sell  v.  Davidson,  65  Conn.  183;  In 

s*  Jacobson      v.      Massachusetts,  re  Smith,  146  N.  Y.  68 ;  Viemeister 

197    U.   S.    11;    Commonwealth   v.  v.  White,  179  N.  Y.  235;  Field  v. 

Pear,    183    Mass.    242;     Common-  Eobinson,    198    Pa.    638;    Stull   v. 

wealth  v.  Jacobson,  183  Mass.  242;  Eeber,  215  Pa.  156;  Blue  v.  Beach, 

Osborn   v.    Eussell,    64   Kas.    507;  155  Ind.  121,  56  N.  E.  89,  50  L. 

State  v.  Hay,  126  N.  C.  999 ;  State  E.   A.   64;    Harris   v.   Cox,    D.    C. 

v.  Shorrock,  55  Wash.  208;   Abeel  Law,     No.     53015;      McSween     v. 

v.  Clark,  84  Cal.  226;  State  Board  School  Board,   129  S.  W.  206. 
of   Health    v.    Board    of    Trustees,  95  152  U.   S.   136. 


QUARANTINE   AND   ALLIED    SUBJECTS  635 

the  right  of  the  state  thus  to  order  was  not  properly 
before  the  court,  and  for  that  reason  it  was  not  given 
special  consideration,  the  cases  being  decided  upon  the 
basis  that  the  state  had  not  so  ordered  through  legis- 
lative enactment.96  It  has  been  claimed  in  some  cases 
that  the  state  may  delegate  this  authority  to  local  gov- 
ernmental bodies,  like  the  board  of  health,  or  the 
school  board ; 97  and  in  other  cases  this  authority  has 
been  hinted,  though  not  affirmed.98  In  the  absence  of 
express  delegation,  it  has  generally  been  held  that  the 
local  authorities  have  full  power  to  enforce  vaccina- 
tion in  the  presence  of  the  disease  in  an  epidemic  form ; 
but  there  has  been  a  divergence  of  opinion  as  to  the 
local  power  in  the  absence  of  an  emergency,  and  when 
no  express  delegation  of  authority  has  been  made  by 
the  state.  The  local  power  has  been  sustained  in  many 
states;99  though  it  may  be  that  those  states  are  more 
nearly  correct  in  which  the  right  to  delegate  such 
authority,  except  for  emergent  use,  is  questioned  or 
denied.100  Evidently  the  local  governmental  body 
may  not  use  such  power  if  the  state  has  distinctly  pro- 
hibited it.  Thus  after  the  decisions  above  mentioned, 
the   states   of  Minnesota,    South   Dakota,    and   Utah 

96  Jenkins  v.  Board  of  Educa-  ss  Blue  v.  Beach,  115  Ind.  121 ; 
tion,  234  111.  422;  Potts  v.  Breen,  Duffield  v.  School  Disk,  162  Pa. 
167  111.  67;  State  v.  Burdge,  95  476;  State  v.  Board  of  Education, 
Wis.  390,  37  L.  E.  A.  157.  21  Uta.   401;    McSween   v.   School 

97  Commonwealth  v.  Pear,  183  Board,  129  S.  W.  206;  Auton  v. 
Mass.  242;  In  re  Smith,  146  N.  Y.  School  Board,  83  Ark.  431;  State 
68;  Morris  v.  Columbus,  102  Ga.  v.  Cole,  220  Mo.  697;  State  v.  Zim- 
792;  State  v.  Board  of  Education,  merman,  86  Minn.  353,  58  L.  E.  A. 
81  N.  E.  568.  78,    90   N.    W.    783 ;    Hutchins    v. 

98  Jenkins  v.  Board  of  Educa-  Durham,  137  N.  C.  68;  Glover  v. 
tion,  234  111.  422;  Mathews  v.  Board  of  Education,  14  S.  D.  139; 
Board    of    Education,    127    Mich.  State  v.  Beil,  157  Ind.  25. 

530;    Osborn    v.   Eussell,    64   Kas.  ioo  p0tts  v.  Breen,   167  111.  67; 

507.  Laubaugh  v.  Board  of  Education, 


636  PUBLIC   HEALTH   ADMINISTRATION 

passed  statutes  forbidding  compulsory  vaccination. 
However,  as  Professor  Freund  well  remarks,1  if  the 
protection  of  the  public  health  allows  quarantine,  it  is 
difficult  to  see  why  it  should  not  justify  compulsory 
vaccination.  The  difficulty  of  enforcing  measures  of 
personal  compulsion  is  a  strong,  and,  generally  speak- 
ing, an  adequate  safeguard  against  an  abuse  of  legis- 
lative power  in  this  direction. 

A  town  ordinance  requiring  vaccination  will  not  be 
considered  invalid  because  it  makes  no  exception  of 
persons  whose  physical  condition  would  make  vaccina- 
tion dangerous  to  them.2  "We  are  of  the  opinion  that 
the  school  boards  of  Missouri  have  the  right  to  enact 
and  enforce  rules  of  the  character  here  in  question, 
(i.e.  excluding  unvaccinated  children  from  schools), 
at  all  times  whenever  there  is  either  a  small -pox  epi- 
demic in  the  district,  or  whenever  there  is  a  threatened 
small-pox  epidemic.  The  very  purpose  of  such  regu- 
lations might  be  thwarted  were  we  to  actually  await 
the  epidemic  itself."3  As  was  remarked  in  Jenkins 
v.  Board  of  Education,33  there  is  nothing  in  the  nature 
of  an  emergency  when  occasional  cases  of  small-pox 
occur  in  a  large  city  like  Chicago.  The  time  for  vac- 
cination is  not  when  the  danger  has  become  urgent, 
but  before  the  case  has  occurred. 

There  may  be  some  question  concerning  the  relative 
powers  of  school  authorities  and  boards  of  health.  In 
an  Ohio  case  the  order  was  originally  issued  by  the 

177  111.  572 ;  Jenkins  v.  Board  of  *  Police  Power,  447. 

Education,  234  111.  422;   Mathews  2  State  v.  Hay,  126  N.  C.  999. 

v.  Board  of  Education,  127  Mich.  3  state  ex  rel.  O'Bannon  v.  Cole, 

530;    Osborn   v.   Russell,   64    Kas.  220  Mo.  697. 

507;  State  v.  Burdge,  95  Wis.  390;  sa  234  111.  422. 
Morris  v.  Columbus,   102  Ga.  792. 


QUARANTINE    AND    ALLIED    SUBJECTS  637 

board  of  health,  in  the  form  of  an  ordinance.  This  the 
school  board  considered  and  decided  to  enforce.  The 
court  held  that  the  board  of  health  did  not  have 
authority  to  enact  such  an  ordinance,  but  that  the 
school  board,  being  authorized  to  make  such  rules  as 
were  deemed  necessary,  had  the  authority  under  the 
circumstances  to  order  all  children  attending  school  to 
present  evidences  of  vaccination.  In  effect  the  board 
of  health  simply  advised  such  action,  and  the  school 
board  practically  made  the  ordinance  its  own.4  Legis- 
lative provisions  making  vaccination  a  condition  for 
admission  to  schools  do  not  conflict  with  other  provi- 
sions, even  when  these  are  in  the  constitution,  provid- 
ing for  the  education  of  all  children  above  a  certain 
age.5  If  the  physical  condition  of  a  child  is  such  that 
she  cannot  safely  be  vaccinated  she  should  be  excluded 
from  school  for  the  time.6  In  Pennsylvania  it  is  the 
duty  of  school  directors  to  see  that  the  school  teachers 
exclude  children  who  do  not  produce  certificates  of 
examination,  but  such  directors  may  not  be  compelled 
by  mandamus  to  do  so.7  A  certificate  given  by  a  duly 
licensed  practitioner  of  medicine  is  conclusive  upon 
school  authorities,  though  they  may  take  steps  to 
determine  its  genuineness.8  It  seems  to  us  that  such 
certificates  should  not  be  considered  final;  neither 
should  they  be  accepted  by  the  school  authorities  fur- 
ther than  for  transmission  to  the  proper  health  office, 
and  that  the  health  officer  should  have  the  power  to 

4  Carr    v.    Board    of    Education,  i  Commonwealth    v.    Rowe,    218 

Vol.   13,  Ohio  Dec.   10  N.  P.  Rep.       Pa.  168. 
1903,  430.  s  Cousins    v.    Burgie,    13    D.    R. 

s  Stull  v.  Reber,  215  Pa.  156.  368. 

c  Hutchins  v.  Durham,  137  N.  C. 
68 ;  Hammond  v.  Hyde  Park,  80  N. 
E.  650. 


638  PUBLIC   HEALTH   ADMINISTRATION 

accept  or  reject  such  certificates,  subject  to  further 
proof.  In  other  words,  the  certificates  should  be  taken 
as  evidence,  not  as  proof. 

In  the  state  of  Alabama  we  find  a  peculiar  condition. 
By  the  Code  of  1907,  as  amended  in  1911,  section  698 
makes  the  State  Medical  Association  the  State  Board 
of  Health,  and  section  700  in  like  manner  makes  the 
county  medical  societies,  affiliated  with  the  state 
society,  the  county  boards  of  health.  The  legality  of 
this  arrangement  may  be  questioned,  (See  Sec.  284) 
and  apparently  the  state  supreme  court  doubts  its 
legality.9  The  county  medical  society  of  Perry  County 
claimed  the  sole  right  to  employ  persons  to  vaccinate 
people,  fumigate  premises,  and  take  such  other  meas- 
ures as  seemed  fitting  for  stamping  out  the  contagion 
of  small-pox.  The  court,  without  deciding  as  to  the 
statutory  powers  of  the  medical  society  did  decide  that 
it  had  no  interest  whatever  in  the  disposition  the  con- 
stituted authorities  make  of  the  county  funds. 

The  distinction  between  the  treatment  of  small-pox 
cases  and  vaccination  was  made  in  a  New  Hampshire 
case,  where  it  was  held  that  the  select  men  of  the 
town  had  no  authority  to  pay  for  the  treatment  of  a 
family  who  were  able  to  pay  for  themselves,  but  that 
the  town  must  pay  for  the  vaccination.10  A  similar 
distinction  was  made  in  Kentucky.11  In  Maryland  it 
was  also  held  that  the  county  must  pay  for  vaccina- 
tion.12 Such  obligation  is  recognized  even  where  the 
authority  was  merely  to  prevent  the  spread  of  small- 

9  Commissioners '  Court  of  Perry  n  Pusey  v.  Meade,  64  Ky.  217. 

County    v.    Medical    Society,    128  12  Commissioners    of    Alleghany 

Ala.  257.  County  v.  McClintock,  60  Md.  560. 

in  Wilkinson    v.    Albany,    28    X. 
H.  9. 


QUARANTINE   AND   ALLIED    SUBJECTS  639 

pox.13  Where  the  amount  to  be  paid  is  fixed  by  law, 
and  that  amount  is  a  ridiculously  small  amount,  the 
authorities  cannot  be  forced  to  pay  more.14  The  local 
board  of  health  may  not  properly  employ  one  of  their 
number  to  perform  the  vaccination.15 

There  is  good  reason  for  believing  that  there  is  an 
essential  unity  between  small-pox  and  cow-pox.  In 
the  place  of  using  the  virus  of  cow-pox  for  the  protec- 
tive inoculation,  the  attenuated  virus  of  the  small-pox 
is  itself  sometimes  used.  Before  the  days  of  vaccina- 
tion it  was  customary  to  inoculate  the  virus  of  small- 
pox for  protection,  and  this  new  method  is  but  an 
improved  technique  upon  the  old  custom.  This  method 
was  declared  not  to  be  vaccination  in  a  Pennsylvania 
case.16  Though  in  some  of  the  lower  courts  in  the 
state  of  Iowa  a  different  conclusion  has  been  reached, 
it  may  perhaps  be  questioned  whether  this  administra- 
tion of  variolinum  is  advisable,  or  whether  it  is  a  legal 
method  of  vaccination.  Successful  vaccination  has 
been  legally  denned  as  being  indicated  when  the 
typical  reaction  follows  the  introduction  of  the  virus 
of  the  vaccine  disease.17 

In  recent  times  other  diseases  have  been  met  by  pro- 
ceeding similar  to  vaccination.  Antityphoid  inocula- 
tion, with  the  killed  bacilli  of  the  disease,  is  being 
largely  and  successfully  used  to  prevent  typhoid  fever 
in  the  army  and  navy,  and  it  is  also  being  used  in 
civil  life.  Its  use  may  be  justified  in  health  administra- 
tion. Diphtheria  antitoxin  has  been  used,  not  only  foi- 
ls Hazen  v.  Strong,  2  Vt.  427.  i«Lee  v.  Marsh,  230  Pa,  351. 
14  Mathias  v.  Lexington  Count)',  ii  State  v.  Shorock,  55  Wash. 
60  S.  E.  970.                                              208. 

is  Ft.    Wayne    v.    Rosenthal,    75 
Ind.  156. 


640  PUBLIC    HEALTH   ADMINISTRATION 

curative  action,  but  also  for  preventive  purposes.  At 
present  this  use  of  the  substance  may  not  be  unreserv- 
edly indorsed,  for  the  reason  that  there  are  indications 
that  it  may  simply  serve  to  mask  an  infection,  and  to 
permit  the  bacilli  to  grow  undetected.  The  use  of 
antiplague  serum  is  not  entirely  without  danger, 
though  in  the  condemnation  of  the  measure  in  a  case 
before  the  federal  court  more  stress  was  laid  upon  the 
fact  that  the  regulation  in  question  was  limited  in  its 
operation  to  Mongolians.18 

§  417.  Control  of  insect  and  other  carriers.  In  the 
light  of  our  modern  knowledge  restriction  of  disease 
has  taken  on  an  entirely  new  character.  In  the  place 
of  paying  so  much  attention  to  persons  diseased,  the 
chief  warfare  for  many  diseases  must  be  against  the 
insect  and  other  animal  carriers.  (§§27,  28.)  So  far 
as  has  come  to  our  knowledge,  these  new  methods  have 
not  been  the  subject  of  many  decisions  in  the  higher 
courts,  probably  because  the  evidence  is  so  over- 
whelmingly conclusive  as  to  the  necessity  of  such  a 
warfare  that  no  one  has  seen  fit  to  make  determined 
opposition.  A  breeding  place  for  mosquitoes  or  rats 
is  a  nuisance,  and  as  a  nuisance  old  methods  of  proce- 
dure are  sufficient  for  abatement.  A  house  infested 
with  rats  is  a  nuisance  in  posse  in  a  community,  and  in 
the  presence  of  the  bubonic  plague,  it  becomes  a  nui- 
sance in  esse,  by  virtue  of  harboring  the  nuisance  per 
se,  rats,  which  in  the  presence  of  the  disease  may 
become  exceedingly  dangerous.  As  to  the  power  of  a 
city  to  require  rat-proofing  of  buildings  under  con- 
struction there  would  probably  be  no  question;  but 

is  Wong  Wai  v.  Williamson,  103 
F.  1. 


QUARANTINE    AND    ALLIED    SUBJECTS  041 

after  a  building  has  been  constructed,  enforcement  of 
such  a  regulation  would  depend  upon  the  evidence 
of  real  necessity.  Mosquitoes  are  nuisances,  and  may 
well  be  the  subject  of  warfare  under  ordinal*}7  condi- 
tions. In  the  presence  of  malaria  or  yellow  fever  there 
is  a  positive  obligation  upon  the  health  office  to  make 
an  uncompromising  fight.  Under  such  conditions  the 
communal  sentiment  would  support  a  health  officer  in 
doing  things  which  would  not  otherwise  be  tolerated. 
For  example,  the  last  time  that  the  yellow  fever  made 
its  entrance  into  New  Orleans,  Surgeon  White  of  the 
public  health  service  gave  orders  that  any  gutter  upon 
a  building  found  containing  water  be  immediately 
punctured  for  complete  drainage.  This  summary 
measure  was  necessary  to  save  time.  In  the  same  con- 
test an  unscreened  barrel  of  water  was  emptied  and 
cisterns  found  containing  wigglers  were  treated  with 
oil.  This  oil  treatment  spoiled  the  water  for  domestic 
use.  It  was  thus  a  destruction  of  property  without 
compensation,  other  than  the  general  compensation  of 
protection  against  the  disease.  In  all  of  these  cases 
the  authority  for  action  and  methods  of  procedure 
must  be  found  in  the  well  recognized  principles  for 
abatement  of  nuisances. 

All  efforts  to  abate  these  nuisances  must  be  reason- 
able. An  ordinance  passed  by  a  county  in  California 
declared  ground  squirrels  to  be  a  public  nuisance,  and 
required  all  owners  of  land  within  the  county  to  exter- 
minate all  such  ground  squirrels  upon  their  own  prop- 
erty within  ninety  days.  The  ground  squirrels. have 
been  regarded  as  a  nuisance  on  account  of  their 
destruction  of  growing  crops;  but  more  recently  they 
have  assumed  a  more  dangerous  role.     The  bubonic 


642  PUBLIC    HEALTH   ADMINISTRATION 

plague  has  been  communicated  from  human  beings  to 
rats,  and  from  rats  to  ground  squirrels  through  the 
agency  of  fleas,  and  by  the  ground  squirrels  it  has 
again  been  communicated  to  the  human  species.  Pre- 
viously these  rodents  were  a  commercial  nuisance :  now 
they  are  found  to  be  also  sanitary  nuisances.  Admit- 
ting, therefore,  the  necessity  for  their  extermination 
still  the  ordinance  in  question  was  deemed  by  the 
supreme  court  of  the  state  as  arbitrary  and  unreason- 
able in  form,  and  therefore  void.19 

There  can  be  no  question  as  to  the  power  of  the  state 
to  compel  the  filling  or  clearing  and  drainage  of  lands 
which  might  otherwise  create  malaria  or  other  dis- 
eases.20 The  only  way  that  such  lands  can  have  a 
causative  action  relative  to  malaria  is  by  the  breed- 
ing of  mosquitoes.  So  a  corporation  may  be  liable 
for  malaria  produced  by  mosquitoes  bred  upon  the 
company's  property.21  The  instrumentality  of  the  fly 
as  a  carrier  of  various  forms  of  infection,  particularly 
those  of  the  intestinal  tract,  is  being  recognized.  Not 
only  may  we  prohibit  the  maintenance  of  places  in 
which  the  fly  breeds,  but  we  may  also  protect  such 
food  as  is  eaten  without  further  cooking  from  the  pos- 
sibility of  becoming  contaminated  in  the  shops  by 
insects  walking  over  it.  The  Minnesota  ordinance 
requiring  the  screening  of  fruits  exposed  for  sale  was 
attacked  on  the  ground  that  it  worked  a  hardship.  The 
court  said  that  properly  construed  it  was  not  burden- 
some, and  it  should  not  prevent  the  exhibition  of  goods 
in   the   open  by   the   dealers.22     The   ordinance   was 

is  Ex  parte  Hodges,  87  Cal.  162.  22  Ex  parte  Bacigalupo,  132  N. 

20  Kude  v.  St.  Marie,  99  N.  W.       W.  303. 
460. 

21  Towaliga  Falls  Power  Co.  v. 
Sims,  65  S.  E.   844. 


QUARANTINE   AND    ALLIED    SUBJECTS  643 

upheld.  So  too  the  New  Hampshire  statute  requiring 
the  wrapping  of  bread  was  sustained,23  the  entire  court 
concurring. 

§418.  Personal  liability  for  communicating  dis- 
ease. An  extragovernmental  aid  for  the  preserva- 
tion of  the  public  health  is  found  in  the  assessment  of 
damages  against  those  who  are  guilty,  through  their 
carelessness,  of  causing  sickness  in  others.  This  form 
of  litigation  is  not  new,  but  it  may  well  be  expected 
to  be  more  frequent  in  the  future.  This  is  true  because 
the  science  of  medicine  is  more  definite  than  formerly, 
and  knowledge  of  sanitary  matters  is  more  general. 
On  the  other  hand  precedent  may  not  be  depended 
upon,  perhaps,  as  confidently  as  it  once  might  have 
been.  For  example,  an  old  case  is  the  English  one  in 
which  it  was  held  that  a  person  might  be  indicted  for 
carrying  a  child  infected  with  small-pox  along  a  pub- 
lic highway.24  Truly  one  should  not  be  oblivious  to 
the  rules  of  quarantine,  but  the  danger  to  others  in  the 
simple  carrying  of  the  child  along  the  highway  would 
be  slight,  unless  there  were  flies  or  other  carriers  of  the 
virus  present. 

An  early  case  in  Illinois,  though  not  pertaining  to 
human  disease,  still  has  its  bearing  upon  the  subject. 
A  farmer  had  a  flock  of  sheep  infested  with  the  scab. 
The  sheep  were  turned  into  a  pasture.  Owing  to  a 
defect  in  the  portion  of  the  fence  which  it  was  the  duty 
of  the  owner  of  the  sheep  to  keep  up,  the  sheep  broke 
through  and  communicated  the  disease  to  neighbors' 
sheep.    The  owner  of  the  first  flock  was  held  liable.25 


23  State  v.   Normand,  76   N.   H.  25  Herriek  v.  Gary,  65  111.  101. 
541. 

24  Rex  v.  Vantandillo,  4  M.  &  S. 
73. 


644  PUBLIC    HEALTH   ADMINISTRATION 

A  person  having  small-pox  is  duty  bound  to  keep 
where  he  will  not  expose  others.26  So  an  innkeeper 
who  receives  a  guest  after  he  knows  that  there  is  small- 
pox in  the  house  is  liable  to  the  guest  so  received  if 
the  latter  contract  the  disease.27  A  landlord  who 
leases  a  dwelling  knowing  that  it  has  recently  been 
infested  with  small-pox  or  diphtheria  is  liable  to  his 
tenant  should  any  of  the  family  of  the  latter  contract 
a  disease,  even  though  the  house  has  been  fumigated.28 
A  railroad  company  may  be  held  liable  to  passen- 
gers who  contract  small-pox  from  the  ticket 
agent.  Since  the  ticket  agent  had  reason  to  believe 
that  he  had  the  disease,  the  company  was  informed,  and 
therefore  liable.29  But  when  there  was  doubt  as  to  the 
nature  of  the  disease,  and  the  testimony  failed  to  show 
actionable  negligence  on  the  part  of  the  father  when 
he  put  his  child  in  a  section  house,  the  road  should  not 
be  held.30  Neither  is  the  road  liable  for  the  communi- 
cation of  small-pox  from  its  ticket  agent  if  neither  the 
agent  nor  his  superiors  had  any  knowledge  that  he  had 
the  disease.31  So  when  there  was  very  slight  evidence 
that  a  man  had  the  small-pox,  and  none  that  he  knew, 
or  had  reason  to  believe  that  he  had  it  when  he  went 
upon  the  streets,  the  court  should  have  peremptorily 
instructed  the  jury  to  find  him  not  guilty.32  The  lia- 
bility of  a  physician  to  a  man  who  took  the  small-pox 

26  Franklm  v.  Butcher,  129  S.  29  Mo.,  Kan.  &  Texas  Ey.  Co.  v. 
W.  428 ;  Hendricks  v.  Butcher,  129       Raney,   99  S.   W.  589. 

S.  W.  431.  30  Mellody  v.   M.,  K.   &  T.   Ey. 

27  Gilbert  v.  Hoffman,  66  Iowa,       Co.,  124  S.  W.  702. 

205.  31  Long  v.  Chicago,  K.  &  W.  Ey. 

28  Minor    v.    Sharon,    112    Mass.       Co.,  15  L.  E.  A.  319. 

477 ;  Cutter  v.  Hamlin,  147  Mass.  »2  Lawrence    v.     Commonwealth, 

471;    Snyder   v.   Gorden,   46    Hun,       127  S.  W.  1013. 
538;    Cesar   v.    Karutz,    60    N.    Y. 
229. 


QUARANTINE   AND   ALLIED    SUBJECTS  645 

when  sent  to  whitewash  a  house  in  which  both  knew 
that  a  patient  had  recently  died  from  the  small-pox, 
depends  upon  the  physician's  negligence,  and  the 
man's  contributory  negligence,  which  were  questions 
for  the  jury,  where  the  physician  assured  the  man  that 
there  was  no  danger  because  the  house  had  been  thor- 
oughly disinfected.33  But  a  city  is  not  liable  when 
small-pox  is  contracted  by  a  man  employed  to  tear 
down  an  infected  building  that  had  been  used  as  a 
small-pox  hospital,  though  the  building  had  not  been 
disinfected,  nor  the  man  warned  of  the  danger.  Even 
in  case  of  his  death  the  city  cannot  be  held  liable  for 
the  errors  of  its  officers  who  were  acting  in  a  govern- 
mental capacity.34  A  hospital  is  liable  if  a  nurse  con- 
tract diphtheria  from  a  patient,  where  cultures  have 
been  made  and  the  diphtheria  bacillus  was  found,  but 
the  nurse  was  not  informed.35  Likewise  a  lodger  is 
liable  who  takes  children  afflicted  with  the  whooping 
cough  into  a  boarding  house,  knowing  that  they  have 
the  disease,  if  in  consequence  of  her  act  others  contract 
the  disease.36 

The  Missouri,  Kansas,  and  Texas  railway  company 
established  a  small-pox  camp  in  which  to  treat 
employees  who  had  the  disease.  This  camp  was  near 
to  the  house  of  one  Wood  who  himself  contracted  the 
disease  of  small-pox,  as  did  also  his  wife  and  child, 
and  the  child  died.  The  said  Wood  thereupon  sued  the 
railway  company  for  damages.  In  defense  the  railway 
company  put  in  the  claim  that  Wood  was  guilty  of 
contributory  negligence  in  that  neither  he,  nor  his 

33  Spa  v.  Ely,  8  Hun,  256.  36  Hewett  v.  Woman 's  Hospital 

34  Nicholson      v.      Detroit,      129      Aid  Assn.,  64  Atl.  190. 

Mich.  246.  so  Smith  v.  Baker,  20  Fed.   709. 


646  PUBLIC   HEALTH   ADMINISTRATION 

family  were  vaccinated.  The  court  held  that  the  evi- 
dence does  not  show  contributory  negligence  on  the 
part  of  appellees  in  failing  to  have  themselves  or  their 
child  vaccinated.37  This  is  an  unfortunate  precedent, 
for  it  but  aids  those  who,  as  the  court  of  North  Caro- 
lina remarked : 3S  ' '  will  deny  any  other  f esult  of  human 
experience,  however  well  established. ' ' 

The  supreme  court  of  the  state  of  Washington  sus- 
tained the  assessment  of  damages  against  a  physician 
for  communicating  gonorrhoea  to  a  patient  by  the  use 
of  unclean  instruments.39  This  was  a  civil  damage 
suit,  and  when  contrasted  with  the  next  to  be  men- 
tioned illustrates  how  such  actions  brought  by  pri- 
vate parties  may  easily  be  more  efficient  than  govern- 
mental methods.  Under  statutory  provisions  prescrib- 
ing a  penalty  for  wilfully  and  knowingly  importing 
into  the  state  or  into  any  county  of  Texas  any  infec- 
tious disease,  or  for  inoculating  for  infectious  diseases 
after  they  may  have  been  introduced,  except  as  pro- 
vided by  law,  an  indictment  that  the  defendant,  hav- 
ing an  infectious  disease  known  as  gonorrhoea,  did 
wilfully,  knowingly,  and  unlawfully  inoculate  a  cer- 
tain person  by  means  of  sexual  intercourse,  charges 
no  offense.40 

There  is  another  class  of  cases  where  this  form  of 
litigation  promises  to  be  still  more  efficient.  It  is 
found  where  the  disease  is  communicated  more  or  less 
indirectly,  and  often  without  the  victim  noting  any 
suspicious  warning.  The  city  of  Mankato,  Minnesota, 
was    assessed    damages   for   communicating    typhoid 

37  Mo.,  K.  &  T.  E.  R,  Co.  of  39  Helland  v.  Bridenstine,  104 
Texas  v.  Wood,  68  S.  W.  802.              Pae.  626. 

38  State  v.  Hay,  126  N.  C.  999.  *<>  Austin  v.   State,   56   So.   345. 


QUARANTINE   AND   ALLIED    SUBJECTS  647 

fever  in  its  water  supply.41     There  are  other  similar 
cases 


42 


In  the  Engineering  News,  Ap.  28,  1910,  p.  506, 
there  is  an  account  of  an  English  case  in  which  the 
owner  of  a  dairy  was  assessed  damages  to  the  amount 
of  five  hundred  pounds  by  the  civil  court  at  the  Liver- 
pool Assizes  for  selling  typhoid  in  the  milk.  It  was 
shown  that  there  was  a  case  of  typhoid  on  a  dairy 
farm.  For  a  time  the  patient  was  in  a  hospital,  but 
after  he  returned  home  typhoid  fever  appeared  in 
eight  out  of  the  twenty-five  households  supplied. 
Out  of  200  adults  using  the  milk,  thirteen,  or  6.57 
per  cent  were  infected.  Out  of  forty-two  children, 
eleven,  or  26  per  cent  were  infected.  In  1905  there  was 
a  similar  case  in  which  substantial  damages  were  as- 
sessed and  sustained.43  This  dairy  company  took  par- 
ticular pains  to  emphasize  the  care  which  was  taken  to 
prevent  infection.  It  might,  on  account  of  these  adver- 
tisements, perhaps  have  been  held  a  little  more  strictly 
to  account  than  it  would  have  been  otherwise.  It  gave 
as  a  defense  that  it  was  difficult  to  make  bacteriologic 
examinations  which  would  detect  the  presence  of  the 
typhoid  bacillus,  on  account  of  the  length  of  time  which 
must  necessarily  be  consumed  therein.  Here  also  the 
disease  was  traceable  to  a  typhoid  case  upon  the  farm, 
and  as  a  result  out  of  430  customers  at  Ealing,  23  be- 
came infected;  and  out  of  179  at  Acton,  21  were 
infected. 

There  is  still  another  class  of  cases  in  which  delin- 

4i  Keever  v.  Mankato,  113  Minn.  *3  Frost  v.  Aylesbury  Dairy  Co., 

55.  74  L.  J.  K.  B.  386. 

is  Milnes  v.  Huddersfield,  L.  E. 
10  Q.  B.  D.  124;  McGregor  v. 
Boyle,  34  la.  268. 


648  PUBLIC   HEALTH    ADMINISTRATION 

quents  may  be  assessed  for  damages  as  the  result 
of  breeding  insects  which  are  disease  carriers.  Here 
the  recent  scientific  advances  may  cut  an  important 
figure.  The  owner  of  a  tannery  was  sued  for  damages 
as  the  result  of  the  death  of  a  patient  from  malaria. 
It  was  alleged  that  the  tannery  odors  weakened  the 
patient  and  that  she  contracted  the  disease  from  the 
insanitary  condition  of  the  place.  It  was  shown  that 
there  were  many  flies  around  the  tannery  yard,  but 
it  was  not  shown  that  there  were  mosquitoes.  The 
court  held  that  the  evidence  showed  that  malaria 
could  not  be  communicated  by  miasm,  nor  through  the 
agency  of  flies;  and  that  it  was  not  shown  that  there 
were  anopheline  mosquitoes  bred  in  the  yard;  and  that 
evidence  showed  that  the  disease  could  only  be  com- 
municated by  those  mosquitoes.44  On  the  other  hand, 
in  a  Georgia  case  it  was  held  that  a  liability  was 
incurred  as  the  result  of  maintaining  a  breeding  place 
for  mosquitoes  which  could  carry  the  malarial  infec- 
tion.45 

A  somewhat  novel  issue  was  raised  in  a  Texan  case. 
The  mother  of  certain  children  was  dead,  and  the 
father,  after  a  second  marriage,  sought  the  custody 
of  his  children.  The  aunt  contested,  offering  to  show 
that  the  mother  of  the  second  wife  was  living  in  the 
family  of  the  father,  and  was  afflicted  with  tubercu- 
losis. In  their  father's  house,  therefore,  the  children 
would  come  into  close  association  with  one  suffering 
from  a  dangerous  communicable  disease.  The  lower 
court  refused  to  receive  this  evidence,  and  awarded 
the  custody  to  the  father.    Upon  appeal,  the  Court  of 

**  Cohen  &  Co.  v.  Rittman,  139  «  Towaliga  Falls  Power  Co.  v. 

S.  W.  59.  Sims,  65  S.  W.  844. 


QUARANTINE   AND   ALLIED    SUBJECTS  649 

Civil  Appeals  set  aside  the  finding,  holding  that  the 
lower  court  erred  in  refusing  this  testimony.  What  is 
for  the  best  interest  of  the  children  is  the  question 
of  prime  importance  in  questions  of  this  kind,  and 
any  evidence  tending  to  show  that  their  welfare  would 
not  be  best  subserved  by  placing  them  in  the  custody 
of  a  contending  party  should  be  admitted  and  consid- 
ered.46 


46Kirkland  v.  Matthews   (Tex.), 
162  S.  W.  375. 


CHAPTER  XV 

Licenses 

§  420.  License  under  taxing  or  po-  §  424.  How  license  is  granted. 

lice    power    distinguished.  §  425.  Medical  licensure. 

§  421.  License  under  police  power.  §  426.  Medical   reciprocity. 

§422.  Permits.  §427.  What  is  medical  practice? 

§  423.  Size  of  fee.  §  428.  Eevocation  of  license. 

§420.  License  under  taxing  or  police  power  dis- 
tinguished. The  license  system  may  be  used  as  a 
means  of  collecting  special  taxes,  or  for  regulating  and 
controlling  certain  occupations.  The  authority  for  the 
one  must  be  sought  in  the  taxing  power,  while  the  other 
is  an  exercise  of  police  power.  In  case  the  object 
sought  is  purely  the  raising  of  revenue,  the  conduct  of 
the  business  or  occupation  may  be  prohibited  until  the 
license  fee  or  tax  shall  have  been  paid,  and  the  license 
is  in  effect  simply  an  evidence  of  the  payment  of  the 
tax.1  In  some  states,  such  as  Ohio  and  Michigan,  a 
sharp  distinction  is  made  between  an  occupation  tax 
and  a  license;  and  where  the  licensing  of  certain 
occupations,  the  liquor  business,  for  example,  is  pro- 
hibited by  the  constitution  of  the  state,  a  law  prohibit- 
ing the  conduct  of  the  business  until  the  tax  be  paid, 
or  a  bond  be  executed,  and  making  a  failure  to  pay  the 
tax  or  to  execute  the  bond  punishable  as  a  misde- 

i  License    Cases,    5    Wall.    462; 
Banta  v.  Chicago,  172  111.  204. 

650 


LICENSES  651 

meanor,  was  held  to  be  in  reality  a  license,  not  a  tax, 
and  therefore  unconstitutional.2  If  the  tax  be  regarded 
as  a  precedent  to  the  right  to  conduct  a  business,  it  is 
considered  as  a  license,3  but  when  no  executive  act  is 
required  as  a  preliminary  to  entering  upon  the  business 
it  is  a  tax.4  Ordinarily  it  is  not  necessary  to  draw  the 
distinction  between  the  taxing  and  regulative  features 
of  an  act,  and  to  a  degree  we  may  find  the  two  com- 
bined.5 

§421.  License  under  police  power.  To  justify  a 
statute  or  an  ordinance  establishing  a  license  require- 
ment upon  any  business  or  occupation  under  police 
power  it  is  essential  that  there  be  something  in  the 
nature  of  the  vocation  or  calling  which  might  prove 
detrimental  to  the  health,  peace,  or  morals  of  the  com- 
munity. The  liquor  business  tends  to  have  such  an 
injurious  effect,  and  it  is  therefore  a  frequent  subject 
for  license.  The  milk  trade  is  frequently  instrumental 
in  spreading  infectious  diseases.  It  must  be  regulated, 
and  to  insure  its  regulation  under  police  power  it  is 
licensed.  In  each  of  these  employments  a  constant 
supervision  is  advisable.  An  unqualified  person 
attempting  to  practice  medicine  may  do  great  harm, 
and  even  cause  death  through  his  ignorance  in  dealing 
with  disease.  This  profession  is  therefore  a  suitable 
subject  for  control  by  license.  In  this  case  the  object 
sought  is  to  guard  against  ignorance — hence  it  is 
required  that  the  applicant  present  evidence  of  his 
qualification  before  the  license  shall  be  issued.  After 
the  license  has  been  once  issued  further  control  is  sel- 

2  State  v.  Higgs,  38  Ohio,  199.  539 ;    Anderson    v.    Brewster,    44 

s  Youngblood  v.  Sexton,  32  Mich.  Ohio,  576. 

406;  State  v.  Sinks,  42  Ohio,  345.  s  Boston  v.  Sehaffer,  9  Pick,  415. 
*  Adler    v.    Whitbeck,    44    Ohio, 


652  PUBLIC   HEALTH   ADMINISTRATION 

dom  attempted.  Itinerant  venders  have  more  oppor- 
tunities to  defraud  than  they  would  have  as  local  store- 
keepers. To  discourage  such  uncertain  commercial 
ventures  it  is  quite  common  that  the  fee  demanded  for 
the  license  be  large  and  the  size  of  the  fee  is  the 
chief  restraining  power,  though  it  may  be  advisable  to 
require  evidence  of  honesty.  Pawnbrokers  may  easily 
be  fences  for  thieves.  In  order  to  prevent  this  dishon- 
est practice  it  is  usual  to  forbid  the  business  unless  a 
license  be  obtained,  and  in  that  manner  all  thus 
engaged  may  be  listed  and  kept  under  observation. 
Each  of  these  uses  of  the  license  system  depends  for 
its  authority  upon  police  power. 

§  422.  Permits.  A  temporary  license,  or  one  which 
covers  a  single  act,  is  ordinarily  called  a  "permit." 
As  an  instance  of  the  use  of  a  permit  as  a  means  for  the 
collection  of  a  tax  we  may  mention  the  permit  fre- 
quently issued  for  shows  on  payment  of  the  fee.  As  is 
true  relative  to  peddlers,  there  is  also  a  slight  excuse 
for  this  license  under  police  power;  but  the  amount 
of  the  tax  obtained  by  the  city  is  the  important  ele- 
ment. Under  police  power  strictly  the  permit  may  be 
used  to  regulate  one  act,  the  result  of  which  may  be 
lasting  in  effect.  For  example:  a  house  improperly 
constructed  may  be  a  constant  source  of  danger  in  the 
community.  If  electric  wires  be  not  properly  insu- 
lated, or  if  chimney  flues  be  constructed  with  thin  walls 
and  close  to  combustible  material,  there  is  constant 
risk  of  fire.  If  plumbing  be  defective  harm  may  result 
to  occupants  of  the  house.  Lack  of  sufficient  light  or 
ventilation  may  also  have  an  injurious  effect  upon  all 
subjected  to  its  influence.  Such  defects  may  be  more 
easily  detected  during  the  construction  of  the  building. 


LICENSES  653 

Under  their  police  power,  therefore,  cities  frequently 
require  by  ordinance  that  no  building  shall  be  erected 
until  a  permit  shall  have  been  secured.  The  permit  is 
only  granted  after  an  examination  of  the  plans,  and  it 
demands  compliance  with  specified  regulations.  After 
the  construction  has  once  been  completed  there  may  be 
some  question  relative  to  the  authority  of  the  city  to 
insist  upon  changes  which  might  more  properly  have 
been  arranged  before.  To  demand  that  such  altera- 
tions be  made  might  be  considered  as  taking  property 
without  due  process  of  law.  However,  a  new  use  for 
the  building,  especially  when  preceded  by  alterations 
in  the  arrangements,  very  properly  reopens  the  oppor- 
tunity of  the  city  to  demand  that  a  permit  be  secured. 
So  it  was  a  valid  use  of  police  power  when  the  state 
enacted  a  statute  providing  that  no  building  subse- 
quently constructed  as,  or  altered  into,  a  tenement- 
house,  should  be  occupied  in  whole  or  in  part  for 
human  habitation  until  after  the  issuance  of  a  certifi- 
cate (permit)  by  the  health  department,  or  such  other 
department  as  had  been  designated  for  that  purpose 
by  a  municipal  ordinance,  stating  that  the  building 
conforms  in  all  respects  to  the  requirements  of  the  act 
relative  to  the  light,  ventilation,  and  sanitation  of 
tenement  houses.  The  conditions  and  restrictions  im- 
posed relate  to  motives  affecting  public  health,  safety, 
and  the  public  welfare.6  In  this  case  which  was 
heard  before  the  District  Court  of  Appeals,  Second 
District,  California,  the  court  said  that  legitimate  busi- 
ness, as  well  as  those  things  which  are  nuisances  in 
and  of  themselves,  is  subject  to  control  if  control  be 

<*  Ex  parte  Stoltenberg,  132  Pac. 
841. 


654  PUBLIC   HEALTH   ADMINISTRATION 

necessary  for  the  preservation  of  the  public  health 
and  welfare.  Nor  does  the  fact,  that  the  section  above 
referred  to  gives  to  certain  officials  authority  to  deter- 
mine questions  relative  to  compliance  with  the  law, 
render  the  act  invalid.  It  will  not  be  presumed  that 
authority  will  be  exercised  wantonly  or  for  purposes 
of  profit  or  oppression.  Under  police  power  licenses 
may  be  granted  by  the  state  or  by  the  municipality. 
As  to  the  authority  of  the  city  to  regulate  by  license,  it 
has  been  said:  "It  is  undoubtedly  the  law  that  the 
right  to  license  must  be  plainly  conferred,  or  it  will  not 
be  held  to  exist.  The  power  to  make  by-laws  relative 
to  specified  lawful  occupations,  or  the  general  power  to 
pass  prudential  by-laws  in  reference  to  them,  would 
not  as  a  rule  authorize  the  municipal  corporation  to 
exact  a  license  from  those  carrying  on  such  a  busi- 
ness."7 Practically  the  license  system  is  frequently 
the  most  effective  means  for  controlling  occupations. 
With  the  license  requirement  it  places  the  burden  of 
proof  upon  the  proprietor  of  the  business  to  be  con- 
trolled. He  must  demonstrate  that  he  is  in  fact  com- 
plying with  all  of  the  requirements.  Without  the 
license  check  a  man  may  conduct  a  doubtful  business 
without  exciting  the  suspicion  of  the  authorities;  and 
when  their  suspicions  have  been  aroused  investigation 
may  be  greatly  hampered,  and  the  burden  of  proof  is 
wholly  upon  the  authorities.  "A  man's  house  is  his 
castle."  Among  Anglican  peoples  there  is  a  strong 
hereditary  reverence  for  the  sanctity  of  private  rights, 
which  is  well  illustrated  by  Chatham's  speech  on  Gen- 
eral Warrants.    "The  poorest  man  may  in  his  cottage 

7  State  v.  McMahon  (Minn.),  72 
X.  W.  E.  79. 


LICENSES  655 

bid  defiance  to  all  the  forces  of  the  crown.  It  may  be 
frail;  its  roof  may  shake;  the  wind  may  blow  through 
it;  the  storm  may  enter;  but  the  king  of  England  may 
not  enter;  all  his  force  dares  not  cross  the  threshold 
of  the  ruined  tenement. "  Following  out  the  same  idea, 
there  is  a  prevalent  impression  that,  except  after  the 
issuance  of  a  warrant,  no  governmental  officer  has  the 
right  to  enter  private  property  without  the  permission 
of  the  owner.  Though  this  abstract  statement  is  con- 
trary to  fact,  the  underlying  feeling  of  Anglican  peo- 
ples is  thus  expressed.  As  shown  in  the  previous  chap- 
ter, the  right  of  entry  must  frequently  be  used  by 
health  inspectors,  but  under  the  license  system  the 
entry  may  be  distinctly  granted  by  the  holder  of  the 
license  as  a  portion  of  the  contract.    See  §  411. 

§  423.  Size  of  fee.  The  amount  of  license  fee  which 
can  be  required  as  a  police  measure  varies  according  to 
the  nature  of  the  occupation  which  is  licensed.  If  the 
amount  be  unreasonably  large  for  the  purpose  for 
which  it  is  required,  it  would  be  deemed  a  violation  of 
the  principle  of  license,  and  an  ordinance  making  such 
requirement  would  probably  be  declared  void.s  But 
when  the  amount  of  the  license  fee  is  determined  by 
the  state  through  legislative  enactment  its  reasonable- 
ness cannot  be  determined  by  the  courts.9  A 
license  fee  might  be  raised  to  such  a  figure  as  to 
be  prohibitive  for  the  occupation.  Authority  for 
such  a  rate  could  not  be  found  in  "authority  to 
regulate."  A  fee  of  twenty  dollars  for  a  peddler's 
license  was  considered  unreasonable  in  State  Center  v. 

sLittlefield    v.    State,    42    Neb.  9  State    v.    Harrington,    63    Vt. 

223;   North  Hudson  Co.  E.  Co.  v.       622. 
Hoboken,  41  N.  J.  L.  81. 


656  PUBLIC   HEALTH   ADMINISTRATION 

Barrenstein,10  and  two  hundred  dollars  was  considered 
an  unreasonable  license  fee  for  a  butcher.11  Sometimes 
the  amount  of  fee  must  be  gauged  by  the  work  required 
of  the  governmental  officers  in  issuing  a  license;  some- 
times, by  the  necessary  expense  of  supervision  of  the 
business;  and  sometimes  more  than  a  nominal  charge 
would  defeat  the  very  object  of  the  requirement. 
Where  a  business  is  of  such  nature  that  it  might  be 
easily  conducted  surreptitiously,  but  a  certain  degree 
of  police  surveillance  is  desirable,  the  conduct  of  the 
business  may  be  prohibited  under  heavy  penalty 
except  under  authority  of  license  for  which  a  nominal 
charge  would  be  made.  In  this  way  such  places  of 
business  may  be  easily  catalogued.  However,  if  the 
charge  for  license  amounted  to  any  considerable  sum 
the  keeper  of  the  place  would  be  very  likely  to  run  all 
the  risks  of  conducting  his  business  without  legal 
authority,  and  hence,  without  registration.  In  the 
case  of  the  milk  business,  which  is  a  frequent  sub- 
ject of  license,  one  must  consider  in  determining  upon 
the  fee  to  be  paid,  not  only  the  clerical  work  of  making 
out  the  papers,  but  also  the  probable  cost  of  such 
inspections  as  might  reasonably  be  expected  in  carry- 
ing out  the  general  terms  of  the  enacted  statutes,  ordi- 
nances, rules,  and  regulations. 

The  city  of  Asheville,  North  Carolina,  passed  an 
ordinance  which  required  all  dealers  in  milk  to  pay  a 
license  tax  of  one  dollar  per  head  of  cattle  in  their 
herds.  Payment  of  this  tax  was  opposed  as  unreason- 
able and  excessive.  The  contesting  dairyman  set  forth 
the  fact  further  that  he  sold  to  only  one  customer,  a 

1066  la.  249. 

n  St.  Paul  v.  Coulter,  12  Minn. 
41. 


LICENSES  6.r>7 

creamery.  The  court  upheld  the  ordinance,  on  the 
ground  that  a  refusal  to  pay  the  fee,  if  sustained,  would 
seriously  interfere  with  taking  such  sanitary  precau- 
tions as  were  necessary  for  the  city;  and  it  was  not 
material  whether  the  dealer  had  one  or  many  cus- 
tomers. Of  course  the  products  of  the  creamery  would 
eventually  be  sold  to  other  customers.  If  the  fee 
charged  were  unnecessarily  large  for  the  purpose 
for  which  it  was  imposed,  it  was  the  dealer's  privilege 
to  set  forth  the  facts  before  the  proper  city  officers;  and 
under  such  circumstances  if  the  city  authorities  failed 
to  reduce  the  fee  the  dealer  might  have  recourse  to  the 
courts  to  compel  such  reduction.  The  size  of  the  fee  is 
primarily  a  matter  to  be  decided  by  the  discretion  of  the 
city.  The  ordinance  requiring  the  license  could  not  be 
set  aside  because  of  error  in  the  use  of  the  municipal 
discretion  relative  to  the  size  of  the  license  fee.12 

It  is  customary  at  the  present  time  to  require  state 
licenses  from  all  who  desire  to  practice  medicine  in  any 
of  its  branches,  pharmacy,  or  dentistry,  for  example, 
in  order  that  the  citizens  may  be  protected  from  the 
venality  of  unqualified  tyros.  In  such  a  case  it  is  the 
fact  of  license  which  protects;  it  is  not  the  fee  which 
protects ;  neither  is  it  any  supervision  of  the  conduct  of 
the  business.  It  is  not  customary  today  for  the  state 
authorities  to  accept  diplomas  as  evidence  of  fitness. 
It  is  required  that  competent  men  shall  examine  can- 
didates and  thus  determine  their  fitness.  Such  an 
examination  may  take  several  days.  There  is  neces- 
sitated not  only  the  expense  of  ordinary  clerical  work, 
but  also  there  should  be  provision  for  the  employment 

i2Asheville  v.  Nettles,  80  S.  E. 
236. 


658  PUBLIC   HEALTH   ADMINISTRATION 

of  examiners  who  are  really  qualified  for  their  work. 
There  is  a  further  necessity  that  suitable  rooms  be 
engaged  for  the  holding  of  such  examination,  and  it 
frequently  happens  that  justice  to  the  citizens  of  a 
state  demands  that  such  examinations  be  held  at 
widely  separated  points.  Very  evidently  in  such  a  case 
more  of  a  fee  may  reasonably  be  asked  than  where  all 
that  is  desired  is  the  registration  of  a  pawn-broker's 
shop. 

Sometimes,  too,  the  amount  of  fee  itself  is  an  import- 
ant factor  in  the  regulation  of  the  business,  as  only  the 
better  equipped  concerns  can  afford  to  pay  a  large  fee. 
It  occasionally  happens  that  this  factor  arouses  the 
protest  of  the  small  dealer,  but  as  a  rule  the  small 
dealer  is  the  man  who  needs  the  closest  watching 
because  he  is  likely  to  employ  incompetent  help  and 
himself  to  lack  sufficient  education  to  appreciate  the 
necessities.  Take  the  milk  business  again,  for  an 
example.  (§§8,  443.)  A  suitable  plant  today  must  have 
its  sterilizers  for  bottles  and  for  cans,  its  bottling 
machines,  its  pasteurizers,  and  other  expensive 
machinery.  The  small  dealer  cannot  afford  such  lux- 
uries; the  large  dealer  can  run  them  economically.  The 
small  dealer  under  the  circumstances  is  likely  either  to 
buy  cheap  or  secondhand  machines  which  work  imper- 
fectly, or  to  entirely  neglect  observing  certain  pre- 
cautions. His  very  means  of  obtaining  his  supply  is 
less  likely  to  be  sanitary.  He  gets  a  can  or  two  of  milk 
brought  down  by  each  of  several  farmers  in  a  wagon 
which  is  used  for  various  other  purposes.  The  writer 
has  often  seen  such  a  wagon  bring  down  milk  in  the 
morning  and  carry  back  a  load  of  manure.  A  large 
milk  firm  cannot  afford  to  run  such  risks.     It  must 


LICENSES  659 

require  that  while  being  transported  to  the  bottling 
plant  the  cans  be  carried  in  specially  prepared  wagons, 
and  that  the  milk  must  be  kept  cool  by  ice  in  the  sum- 
mer time.  The  large  company  finds  it  a  matter  of 
economy  to  employ  special  inspectors  to  go  from  farm 
to  farm  and  make  frequent  investigations  as  to  condi- 
tions, keeping  score  cards  upon  their  observations.  The 
large  company  is  also  likely  to  employ  a  veterinarian 
to  make  frequent  visits,  and  keep  watch  of  the  health 
of  the  cattle.  This  extra  supervision  is  practically 
impossible  for  the  small  dealer.  It  is  a  very  serious 
matter  for  a  large  company  when  an  infection  gets 
started  through  its  dairy  products.  For  the  small  man 
it  may  simply  mean  the  loss  of  trade  for  a  short  time. 
It  is  seldom  that  a  small  dealer  has  a  suitable  appar- 
atus in  which  to  sterilize  milk  cans  before  returning 
them  to  the  farmers;  and  the  farmers  practically  never 
have  such  sterilizers.  The  consequence  is  that  the  cans 
passing  from  the  farmer  to  the  small  dealer  and  back 
again  may  be  the  means  of  spreading  infection  in  both 
directions.  This  was  most  graphically  illustrated  in 
an  epidemic  of  typhoid  fever  which  broke  out  at  Stam- 
ford, Connecticut,  in  April,  1895.  Between  April  15 
and  May  28  three  hundred  and  eighty-six  cases  living 
in  one  hundred  and  sixty  houses  had  been  reported.13 
Ninety-one  and  two-tenths  per  cent  of  these  cases  lived 
in  houses  taking  milk  from  one  dealer.  Sixteen  others 
got  milk  from  the  same  source  indirectly,  as  at  a  cafe, 
making  a  total  of  95.3  per  cent  of  the  cases  directly 
traceable  to  one  dealer,  who  obtained  his  supply  from 

is  Hygienic  Laboratory  Bulletin, 
56  U.  S.  Pub.  Health  Service,  p. 
30. 


660  PUBLIC    HEALTH    ADMINISTRATION 

several  farmers.  These  same  farmers  also  supplied 
milk  to  other  parties,  and  each  one  had  one  or  more 
cases  upon  his  private  routes.  Only  four  cases  out  of 
the  total  showed  no  relationship  with  dealer  B.  The 
infection  in  this  epidemic  was  traced  to  the  rinsing 
of  the  milk  cans,  after  washing,  with  water  from  an 
infected  source  at  B  's  place.  Such  illustrations  show  a 
reasonableness  under  modern  conditions  in  forcing  the 
small  man  out  of  business,  unless  he  be  prepared  to 
carry  out  in  full  sanitary  provisions. 

Sometimes  the  license  fee  is  regarded  as  an  occupa- 
tion tax,  although  the  prime  reason  for  the  requirement 
of  the  license  may  be  for  police  regulation.  A  license 
requirement  is  sometimes  attacked  in  the  court  on  the 
ground  that  the  fee  charged  has  no  relationship  to  the 
expense  involved  in  its  issuance.  The  Supreme  Court 
of  the  United  States  thus  deals  with  the  matter:  "The 
payment  required  as  a  preliminary  to  the  license  is  in 
the  nature  and  form  of  a  tax,  and  is  due  to  the  state 
which  may  demand  and  exact  from  every  one  of  its 
citizens  who  either  will  or  must  follow  some  business 
or  avocation  within  its  limits,  to  the  pursuit  of  which 
the  assessment  is  made  precedent.  It  is  an  occupation 
tax,  for  which  the  license  is  merely  a  receipt,  and  not 
merely  as  incident  to  the  general  police  power  of  the 
state,  which,  under  certain  circumstances  and  condi- 
tions, regulates  certain  employments  with  a  view  to 
the  public  health,  comfort,  and  convenience. "  13a  So 
a  license  fee  of  one  hundred  dollars  required  by  a  city 
ordinance  of  dealers  in  cigarettes  was  upheld.13b 

§  424.  How  license  is  granted.  The  police  power  is 
under  the  jurisdiction  of  the  state,  and  the  state  may 

isa  Eoyall  v.  Virginia,  116  U.  S.  «b  Gundling  v.  Chicago,  177  U. 

572.  S.  183. 


LICENSES  661 

therefore  make  such  provision  for  license  under  its 
authority  as  may  seem  best.  Where  a  business  or 
establishment  affects  several  communities  it  is  mani- 
festly fairer  that  the  state  at  large  shall  use  its  con- 
trol, than  that  the  proprietor  or  practitioner  shall  be 
subject  to  the  diverse  demands  of  separate  municipal- 
ities. On  the  other  hand,  where  the  business  is  essen- 
tially local,  as  in  the  conduct  of  a  pawn-shop,  the 
license  may  better  be  left  to  immediate  local  control. 
Therefore  it  is  that  the  state  legislature  provides  in 
some  cases  for  the  issuance  of  the  license  by  state  offi- 
cers, and  at  other  times  it  empowers  municipalities  or 
other  local  governmental  bodies  to  make  such  regula- 
tions as  seem  necessary,  including  the  authority  to 
issue  licenses.  This  issuing  of  license  must  not  be 
arbitrarily  exercised.  There  must  be  no  discrimina- 
tion between  residents  and  non-residents,  nor  between 
different  persons  engaged  in  the  same  business,  either 
by  charging  larger  fees  for  some,  or  otherwise.14  Where 
authority  is  granted  to  the  city  to  issue  licenses  it 
cannot  leave  to  the  mayor  the  power  to  determine  the 
district  within  which  a  business  may  be  licensed.15  A 
city  cannot  delegate  to  the  mayor  the  power  to  grant 
licenses,16  though  it  may  delegate  the  ministerial  duties 
of  making  out  licenses  and  issuing  the  same  when  cer- 
tain general  regulations  have  been  complied  with.  ' '  It 
is  undoubtedly  the  law  that  the  right  to  license  must 

14  Indianapolis    v.     Better,     138  «  State  v.  Cantler,  33  Minn.  69 ; 

Ind.  30 ;  Clement  v.  Town  of  Cas-  In  re  Wilson,  32  Minn.  145. 

per   (Wy.),  35  Pac.  E.  472;   Muh-  i6  Kinmundy   v.    Mayor,    72    III. 

lenbriek  v.  Com.,  44  N.  J.  L.  365 ;  463 ;  State  v.  Bayonne,  44  N.  J.  L. 

State  v.  Orange,  50  X.  J.  L.  389';  114;  Trento  v.. Clayton,  50  Mo.  541. 

Borough  of  Sayre  v.  Phillips,  148  114;    Trenton   v.   Clayton,   50  Mo. 

Pa.    482;    State    v.    Ocean    Grove  App.  535. 
C.  M.  A.,  55  N.  J.  L.  507. 


662  PUBLIC   HEALTH   ADMINISTRATION 

be  plainly  conferred  or  it  will  be  held  not  to  exist. 
The  power  to  make  by-laws  relative  to  specified  lawful 
occupations,  or  the  general  power  to  pass  prudential 
by-laws  in  reference  to  them,  would  not  as  a  general 
rule  authorize  the  municipal  corporation  to  exact  a 
license  from  those  carrying  on  such  business.  But  in 
view  of  the  very  important  bearing  which  the  scaven- 
ger business  has  upon  the  public  health,  and  the  imper- 
ative necessity,  from  sanitary  considerations,  that  such 
work  should  be  entrusted  only  to  those  who  are  com- 
petent and  properly  equipped  to  perform  it,  we  are  of 
the  opinion  that  the  grant  of  power  to  make  such  regu- 
lations and  to  ordain  such  ordinance  as  may  be  neces- 
sary and  expedient  for  the  preservation  of  health  and 
to  prevent  the  introduction  of  contagious  diseases, 
conferred  authority  on  the  common  council,  as  one 
means  of  regulating  the  scavenger  business,  to  require 
a  license  from  those  carrying  it  on,  and  to  prohibit  any- 
one from  doing  so  without  a  license."17  When  the 
city  ordinance  leaves  to  the  mayor,  or  other  officer,  the 
issuance  of  the  license,  under  conditions  laid  down  in 
the  ordinance,  there  is  no  prohibited  delegation  of 
power;  neither  does  it  violate  the  Fourteenth  Amend- 
ment to  the  federal  Constitution;  neither  does  it 
confer  upon  the  mayor  arbitrary  power.17a 

§425.  Medical  licensure.  It  has  long  been  cus- 
tomary to  put  certain  restraints  upon  the  practice  of 
medicine.    Thus,  under  Statutes  4  and  5  of  Henry  VIII, 

it  Mitchell,  J.,   in   State  v.   Mc-  i7aGundling  v.  Chicago,  177  U. 

Mahon   (Minn.),  72  N.  W.  R.  79;  S.  183;   Gundling  v.  Chicago,  176 

see  also  Ex  parte  Garza,  28  Texas  111.  340;   Chicago  v.  Drogasawacz, 

App.  381;  Boehm  v.  Baltimore,  61  256  111.  34;  Swarth  v.  People,  109 

Md.  259;  Chicago,  etc.,  Co.  v.  Chi-  111.  621. 
cago,  88  111.  221. 


LICENSES  663 

Chapter  5,  we  find  the  act  by  which  the  College  of  Phy- 
sicians of  London  was  established.  In  this  King  Henry 
said  that  he  was  following  the  example  of  Italy,  and  in 
accordance  with  the  suggestions  of  Lord  Woolsey,  he 
1  'held  it  necessary  to  restrain  the  boldness  of  wicked 
men  who  professed  physic  more  for  avarice  than  out  of 
confidence  of  a  good  conscience."  By  this  act  no  one 
was  permitted  to  practice  medicine,  either  in  the  city 
of  London,  or  within  seven  miles  of  the  city,  unless 
he  should  have  passed  a  satisfactory  examination 
before  the  censors  of  this  college.  Violations  of  this 
provision  were  punishable  by  a  fine  of  a  hundred  shill- 
ings a  month,  so  long  as  the  practice  continued.  This 
act  was  confirmed  by  Statute  I,  Mary,  Chapter  9,  and 
extended  in  effect,  permitting  imprisonment  for  mal- 
practice in  a  broad  sense.  It  will  be  noted  that  the 
additions  under  Mary  gave  to  the  censors  of  the  Col- 
lege a  certain  continuous  control  over  parties  licensed. 
One  Thomas  Bonham,  in  1606  brought  action  against 
the  censors  of  the  College  for  false  imprisonment.  It 
was  claimed  that  he  was  practicing  medicine  without 
the  license  of  the  College.  The  censors,  therefore, 
assessed  him  a  fine  and  kept  him  imprisoned  for  the 
space  of  seven  days.  The  decision  by  Lord  Coke 
became  somewhat  famous  incidentally  as  a  precedent 
for  judicial  supervision  of  legislative  acts  contrary  to 
the  common  law.18  It  was  shown  at  the  trial  that  the 
said  Bonham  graduated  from  the  University  of  Cam- 
bridge with  the  degree  of  Doctor  of  Physics  on  July 
2,  1595.  He  therefore  claimed  that  since  he  had  the 
diploma  of  the  University,  the  College  had  no  author- 
ity to  restrain  his  practice  as  the  College  was  a  mere 

18  8  Coke,   107a. 


664  PUBLIC   HEALTH   ADMINISTRATION 

subordinate  to  the  University.  On  the  other  hand  it 
was  shown  that  the  said  Bonham  had  been  before  the 
censors  several  times  for  examination,  and  that  he  had 
failed  to  answer  the  questions  satisfactory.  The  cen- 
sors, therefore,  forbade  his  practicing  medicine,  and 
this  prohibition  he  disregarded.  Lord  Coke  held  that 
they  had  no  authority  to  imprison  Bonham  unless  it 
could  be  shown  that  he  was  guilty  of  malpractice.  As 
to  his  contention  that  the  holding  of  a  diploma  from 
the  University  granted  him  the  right  to  practice, 
Lord  Coke  quoted  the  statute  and  said  that  "nemo" 
■ — no  one — was  sufficient  to  prohibit  any  person  prac- 
ticing in  London  or  within  seven  miles  unless  he  have 
the  license  of  the  College  of  Physicians.  For  that 
violation  the  statute  would  permit  a  fine  of  five  pounds 
a  month  to  be  recovered  by  the  censors  in  an  action  at 
law.  But,  for  less  than  a  month's  violation  there  could 
be  no  fine.  Lord  Coke  said — and  this  expression  has 
made  the  case  famous  in  law — "the  censors  can  not  be 
judges,  ministers,  and  parties;  *  *  *  and  it  appears 
in  our  books,  that  in  many  cases  the  common 
law  will  control  acts  of  parliament,  and  sometimes 
adjudge  them  to  be  utterly  void;  for  when  an  act  of 
parliament  is  against  common  right  and  reason;  or 
repugnant  or  impossible  to  be  performed,  the  common 
law  will  control  it,  and  adjudge  such  act  to  be  void." 
So  much,  therefore,  of  the  statute  as  contemplated  that 
the  censors  be  both  executives  and  judges  in  regulating 
the  practice  of  medicine,  Lord  Coke  held  null  and  void. 
He  said  that  there  should  be  neither  fine  nor  imprison- 
ment without  a  legal  record  of  the  proceeding.  In  gen- 
eral the  comments  of  Lord  Chief  Justice  Coke  in  this 
case  are  valid  today. 


LICENSES  665 

In  order  that  the  populace  may  not  be  imposed  upon 
by  unscrupulous  persons  who  lack  a  knowledge  which 
would  fit  them  to  practice  medicine,  it  is  customary 
at  the  present  time  for  the  individual  states  of  our 
union  each  to  require  that  candidates  for  admission  to 
practice  present  certain  evidence  of  their  qualification. 
This  being  strictly  a  police  regulation  is  within  the 
authority  of  the  individual  states  and  according  to 
the  present  Constitution  of  the  United  States,  it  in  no 
wise  comes  within  the  jurisdiction  of  the  federal  gov- 
ernment. Practitioners  of  medicine  who  are  not  posted 
in  legal  principles  frequently  urge  that  the  federal 
government  assume  the  responsibility  of  granting  such 
licenses.  The  only  legal  authority  for  the  restriction 
of  medical  practice  as  yet  found  in  this  country  has 
been  in  police  power.  It  has  been  repeatedly  held 
that  the  states  have  authority  in  this  power  thus  to 
regulate  the  practice,  and  that  this  power  is  reserved 
to  the  individual  states.19  Apparently,  therefore,  the 
only  way  in  which  the  federal  government  may  under- 
take this  regulation  must  be  by  first  repealing  the  Tenth 
Amendment  to  the  Constitution.  It  is  then  the  province 
of  the  state  legislature  to  determine  the  general  condi- 
tions under  which  a  license  shall  be  granted,  but  the 
granting  of  such  licenses  is  not  ministerial  in  charac- 
ter; it  must  depend  upon  the  exercise  of  discretionary 
judgment  on  the  part  of  the  officer  as  to  whether  or  not 
the  applicant  may  be  qualified  to  assume  the  duties 
of  the  practice.   On  the  other  hand,  neither  the  grant- 

19  Dent    v.    West    Virginia,    129  Michigan,  188  U.  S.  505;  Watson 

U.  S.  114;  Hawker  v.  New  York,  v.  Maryland,   105  Md.  650,  66  A. 

170  U.  S.  189;  Jacobson  v.  Massa-  635;    Ex   parte  Spinney,    10   Nev. 

chusetts,   197  U.   S.    11;    State   v.  323. 
Hathaway,   115   Mo.   36;   Reetz   v. 


666  PUBLIC    HEALTH   ADMINISTRATION 

ing,  nor  the  revocation  of  a  license  to  practice  medi- 
cine is  an  exercise  of  judicial  power.  The  statutes  de- 
termine the  terms  upon  which  the  license  is  granted  or 
revoked,  and  the  issuance  is  purely  an  executive  act, 
though  exercised  with  discretion.198   (§§  183,  184.) 

In  addition  to  requirements  as  to  educational  quali- 
fications of  those  who  seek  licenses  to  practice  medi- 
cine, it  is  entirely  proper  that  the  state  further  safe- 
guard the  interests  of  the  people  by  requiring  that  all 
who  would  enter  into  such  intimate  and  confidential 
relationships  with  the  citizens  shall  be  of  good  moral 
character.  It  has  been  repeatedly  held  that,  so  long  as 
it  uses  reasonable  discretion,  the  legislature  may  de- 
termine what  shall  be  the  evidence  of  such  good  moral 
character.19" 

There  are  two  principal  methods  for  determining  the 
fitness  of  a  candidate,  viz.  by  the  requirement  of  a 
diploma  from  a  recognized  school  of  medicine,  or  by 
examinations  conducted  by  governmental  officers. 
Occasionally  an  exception  is  made  in  favor  of  experi- 
ence permitting  years  of  practice  as  a  substitute  for 
the  training  which  a  diploma  represents.  The  ques- 
tions arise  relative  to  diplomas:  first,  is  the  diploma 
genuine;  and  secondly,  does  it  represent  a  properly 
equipped  school  of  medicine.  Our  American  educa- 
tional system  is  so  exceedingly  lax  that  it  has  been 
possible  in  the  past  for  commercial  establishments  run 
by  men  often  ignorant  of  the  practice  of  medicine, 
though  legally  incorporated  according  to  the  laws  of 

isa  People    v.     Apfelbaum,     251  Minn.   324;    Thompson   v.    Hazen, 

111.  18.  25   Me.    104;    State  v.   Hathaway, 

i9b  Dent   v.   West  Virginia,   129  115    Mo.    .36;    Eastman    v.    State, 

U.  S.  114;  Hawker  v.  New  York,  109   Ind.   278;    State  v.   Call    (N. 

170    U.    S.    189;    State    v.    State  C.)  28  S.  E.  517. 
Medical     Examining     Board,     32 


LICENSES  667 

some  state,  to  issue  diplomas  which  represent  abso- 
lutely nothing  on  the  part  of  the  holder  of  the  "de- 
gree" further  than  the  payment  of  cash.  If  diplomas 
be  accepted  as  a  basis  for  issuing  the  license  by  the 
state,  it  becomes  necessary  to  invest  some  officer  or 
officers  with  the  quasi- judicial  function  of  determining 
the  genuineness  of  the  diplomas  and  the  character  of 
the  school  of  learning;  and  this  examining  body  must 
have  power  to  reject  all  applications  below  a  certain 
grade.  Similarly,  if  the  license  is  to  be  issued  after 
an  examination,  again  the  licensing  board  must  use  its 
quasi-judicial  authority  in  the  determination  of  the 
question  whether  or  not  a  license  be  granted.  Such 
tests  of  fitness  do  not  violate  the  principle  of  equal 
protection  of  the  laws  nor  create  any  special  privilege, 
provided  the  qualification  required  is  obtainable  by 
reasonable  effort.20 

Discretion  implies  a  fair  judgment  without  discrim- 
ination against  any  individual.  The  right  to  practice 
cannot  be  dependent  upon  adherence  to  any  particular 
school  of  medicine.  Science  is  universal;  it  recog- 
nizes no  particular  school.  The  very  idea  of  "school 
of  practice"  is  essentially  commercial,  not  scientific. 
What  the  state  desires  is  evidence  as  to  the  moral 
character  of  the  applicant  and  as  to  his  knowledge. 
Therefore  it  is  that  individual  "schools"  must  neither 
be  given  special  privileges  nor  be  discriminated 
against.  The  exclusion  of  members  of  the  "eclectic 
schools"  by  a  board  of  examiners  is  not  in  itself  a 
discrimination  unless  it  be  shown  that  the  applica- 
tions for  admission  were  improperly  rejected.21     "In 

20  Dent  v.  West  Virginia,  129  U.  2*  Allopathic     State    Board     of 

S.  114;  Ex  parte  Spinney,  10  Nev.  Medical  Examiners  v.  Fowler,  50 
323.  La.  Ann.   1358,  24  S.  R.  809. 


668  PUBLIC   HEALTH   ADMINISTRATION 

a  case  where  it  was  clear  from  the  evidence  that  dis- 
crimination had  been  made  against  a  system  of 
medicine,  we  should  not  hesitate  to  hold  that 
the  board  had  exceeded  its  power. ' ' 22  The  decision 
either  as  to  the  personal  knowledge  of  the  candidate 
by  examination,  or  the  value  of  the  diploma  must  be 
"with  discretion,"  and  in  no  sense  arbitrary.  The 
standard  for  the  school  should  be  fixed  by  statutory 
enactment  and  the  examiners  should  simply  apply  the 
standard  to  the  case.  When  the  board  has  attempted 
to  make  requirements  not  prescribed  by  statute  the 
courts  have  offered  relief  by  mandamus.23  A  similar 
relief  might  be  given  if  the  determination  of  the  lepu- 
tability  of  a  school  has  been  left  to  some  foreign  body, 
or  if  the  board  refuse  to  accept  a  diploma  from  an 
institution  which  it  had  recognized  as  reputable.24 

It  is  customary  that  statutes  regulating  the  practice 
of  medicine  provide  for  the  appointment  of  boards  of 
examiners.  The  California  Law  provides  for  the  elec- 
tion of  medical  examiners  by  different  medical  socie- 
ties. This  provision,  so  far  as  we  are  aware,  has  not 
been  tested  in  the  courts,  but  it  seems  to  us  contrary 
to  good  usage.  The  supreme  court  of  Illinois  held  in  a 
somewhat  similar  case  that 25  such  granting  of  power 
to  special  organizations  was  an  unconstitutional  dele- 
gation of  authority,  and  a  granting  of  special  fran- 
chise which  is  contrary  to  the  Illinois  constitution. 
The  people  of  the  state  elect  officers  to  look  after  the 
business  of  the  state.  They  are  so  elected,  presum- 
ably, because  people  have  confidence  in  their  ability, 

22  Nelson  v.  State  Bd.  of  Health,  23  State  v.  Lutz,  136  Mo.  633. 
22  Ky.  Law  438,  50  L.  K.  A.  383;  21  State    Board    of    Dental    Ex- 
State    v.    Gregory,    83    Mo.    123;  aminers  v.  The  People,  123  HI.  227. 
White  v.  Carroll,  42  N.  Y.  161.  25  Lasher  v.  People,  183  111.  226. 


LICENSES  669 

integrity,  and  judgment.  It  is  not  apparent  by  what 
right  or  authority  the  legislature  of  California  saw  fit 
to  thus  take  a  portion  of  the  governmental  authority 
and  confer  it  upon  independent  and  private  organiza- 
tions. 

"Such  rights  as  inhere  in  the  sovereign  power  can 
only  be  exercised  by  the  individual  or  corporation  by 
virtue  of  a  grant  from  such  sovereign  power,  and  when 
the  state  grants  such  a  right  it  is  a  franchise. ' ' 26 
Power  to  appoint  to  office  is  an  attribute  of 
sovereignty.27  The  legislature  itself  had  no  power  to 
appoint  to  office.  Therefore  it  could  not  give  that 
power  to  non-governmental  persons. 

§  426.  Medical  reciprocity.  Although  variously 
worded,  the  statutes  regulating  the  practice  of  medi- 
cine require  that  the  candidates  shall  be  personally 
examined  by  the  examining  board.  This  seems  to 
exclude  the  employment  of  readers  of  examination 
papers,  or  others  to  do  anything  more  than  the  mere 
ministerial  duties.  Otherwise,  there  would  be  a  dele- 
gation of  authority  with  discretion.  Few  of  the  states 
have  in  their  statutes  any  provision  relative  to  the 
granting  of  license  by  reciprocity.  Unless  special 
exception  be  made  in  the  statute,  there  may  be  some 
considerable  question  as  to  the  legality  of  such  a  pro- 
cedure. Some  of  the  statutes  specify  that  the  examin- 
ation shall  be  in  writing,  and  that  the  examination 
papers  shall  be  a  part  of  the  records  of  the  examining 
board  and  kept  on  file  in  the  office.  It  is  difficult  to 
understand  how  these  provisions  may  be  observed 
when  the  examination  has  been  made  in  another  state, 

2a  Lasher  v.  People,  183  111.  226,  ^  1   Blackstone   Comm.   272. 

233;  citing  Bd.  of  Trade  v.  Peo- 
ple, 91  111.  80;  People  v.  Holtz, 
92  111.  426. 


670  PUBLIC    HEALTH   ADMINISTRATION 

when  these  records  are  kept  in  another  state,  and 
when  the  judgment  as  to  the  qualifications  of  the  ap- 
plicant was  exercised  by  residents  of  such  foreign 
state. 

' '  In  these  cases  in  which  the  proper  execution  of  the 
office  requires,  on  the  part  of  the  officer,  the  exercise 
of  judgment  or  discretion,  the  presumption  is  that  he 
was  chosen  because  he  was  deemed  fit  and  competent 
to  exercise  that  good  judgment  and  discretion,  and, 
unless  power  to  substitute  another  in  his  place  has 
been  given  to  him,  he  cannot  delegate  his  duties 
to  another."28  "Where,  however,  the  question  arises 
in  regard  to  an  act  which  is  of  a  purely  mechanical, 
ministerial,  or  executive  nature,  a  different  rule 
applies.  *  *  *  The  rule,  therefore,  is  that  the  per- 
formance of  duties  of  this  nature  may,  unless  express- 
ly prohibited,  be  properly  delegated  to  another."29 
So,  also,  Throop  says30  in  speaking  of  the  American 
practice:  "Thus  the  rule  is  well  settled  here  that 
ministerial  powers  may  generally  be  executed  by  a 
deputy,  but  judicial  powers  may  not.31  Where  the 
powers  are  partly  ministerial  and  party  of  a  judicial 
nature,  the  exercise  of  the  former  may  be  given  to  a 
deputy,  but  not  that  of  the  latter."32  The  ruling 
given  above  as  to  judicial  duties  applies  also  to  quasi- 
judicial  duties  or  powers.33     Thus,  a  board  of  health 

28  Mechem,  Public  Officers,  567,  so  Public  Officers,  570. 

citing  State  v.  Patterson,  34  N.  J.  si  Citing  Page  v.   Hardin,   8  B. 

L.  163 ;  Sheehan  v.  Gleeson,  46  Mo.  Mon.    (Ky.)    648,   662;    People  v. 

100 ;  Abrams  v.  Ervin,  9  Iowa,  87 ;  Bank    of    N.    America,    75    N.    Y. 

Lewis  v.  Lewis,  9  Mo.  183.  547;    Kirkwood   v.    Smith,    9    Lea 

29Mechem,    Op.  cit.   568,   citing  (Ky.),  228. 

Abrams  v.  Ervin,  9  Iowa,  87 ;  Ed-  32  Citing  Powell  v.  Tuttle,  3  N. 

wards  v.  Watertown,  24  Hun   (N.  Y.  396. 

Y.),  428;   Lewis  v.   Lewis,  9  Mo.  as  Abrams  v.  Ervin,  9  Iowa,  87; 

183.  State  v.  Shaw,  64  Me.  263;  Shee- 


LICENSES  671 

cannot  delegate  to  a  committee  its  power  to  employ 
a  physician.34 

Applying  the  above  to  the  granting  of  medical 
license  by  reciprocity,  if  the  statute  permits  the  regis- 
tration and  license  of  all  who  hold  diplomas  from 
legally  chartered  medical  colleges,  the  duty  of  the 
board  may  be  considered  purely  ministerial,  and  as 
such  the  determination  as  to  the  variety  of  the  diploma 
might  be  left  to  a  foreign  board.  Even  here,  the 
case  is  not  clear,  for  to  a  minor  degree  even  this  deter- 
mination requires  a  semi-judicial  consideration  which 
will  be  the  greater  if  the  statute  requires  that  the  medi- 
cal school  granting  the  diploma  shall  be  of  approved 
standard.  If,  however,  the  statute  requires  that  the 
applicant  shall  pass  an  examination  before  the  board, 
that  is  certainly  of  a  judicial  nature,  and  the  power 
cannot  be  delegated.  The  mechanical  portion  of  the 
examination,  the  supervision  of  the  room  during  a 
written  examination,  for  example,  can  be  delegated, 
but  no  part  requiring  judgment. 

There  is  another  legal  objection  to  license  by 
reciprocity.  A  foreign  board  is  not  under  the  jur- 
isdiction of  the  commonwealth.  Citizenship  is  one  of 
the  requisites  for  office.  It  is  repugnant  to  our  ideals 
of  government  that  any  of  the  attributes  of 
sovereignty  should  be  surrendered  to  a  person  upon 
whom  the  commonwealth  could  have  no  authority — 
who  could  not  be  punished  for  abuse  of  trust.  If  the 
law  regulating  the  granting  of  the  license  does  not 
require  an  examination,  but  simply  requires  that  the 
board  shall  be  satisfied  that  the  applicant  is  a  proper 

han     v.     Gleeson,     46     Mo.     100;  34  Young  v.   Blaekhawk   Co.,   66 

Crocker  v.  Crane,  21  Wend.  (N.  Y.)  Iowa,  460;  Taylor  v.  Adair  Co., 
211.  119  Ky.  374. 


672  PUBLIC    HEALTH   ADMINISTRATION 

person  to  receive  the  license,  the  fact  of  license  in 
another  state  may  be  taken  as  evidence  of  his  fitness. 
For  example:  A  is  licensed  in  Illinois,  and  B  in 
Minnesota.  Both  apply  for  license  in  Massachusetts. 
If  the  Massachusetts  law  simply  required  that  the 
license  board  be  satisfied  as  to  fitness,  but  does  not 
stipulate  how  they  shall  be  so  convinced,  knowing  the 
work  of  the  Minnesota  and  Illinois  boards,  the  Mass- 
achusetts board  might  be  justified  in  licensing  B  and 
in  rejecting  A.  In  other  words,  the  Massachusetts 
board  does  not  surrender  nor  delegate  its  semi-judicial 
power,  though  it  accepts  the  previous  license  as  evi- 
dence of  fitness.  One  Thomas,  having  been  licensed 
to  practice  medicine  in  the  state  of  Maryland, 
attempted  by  mandamus  to  compel  the  issuance  of  a 
license  in  "West  Virginia  by  reciprocity.  The  license 
board  of  the  second  state,  however,  had  a  rule  requiring 
that  an  applicant  for  a  reciprocal  license  must  have 
been  practicing  in  the  state  issuing  the  primary  license 
at  least  one  year.35  This  rule  was  sustained  by  the 
court.  It  will  be  presumed  that  a  man  is  not  a  legal 
practitioner  until  he  proves  to  the  contrary.36 

Lieutenant  Colonel  Kean,36a  of  the  United  States 
Army,  has  suggested  that  use  may  be  made  of  the  Med- 
ical Reserve  Corps  of  the  Army,  and  that  of  the  Navy, 
to  provide  for  license  by  reciprocity.  His  scheme  re- 
quires that  the  state  license  boards  voluntarily  take 
the  result  of  the  army  and  navy  examinations  as  a  basis 
for  license.  This  seems  to  be  open  to  the  objection 
that  it  involves  the  delegation  of  qua  si- judicial  duty. 

35  Thomas   v.    State    Board  of  36a  Quarterly   of   the   Federation 

Health,  79  S.  E.  E.  725.  of    State    Medical    Boards,    April, 

se  Miller    v.    State     (Miss.),  63       1914. 
South.  E.  269. 


LICENSES  673 

It  is  possible  that  these  commissions  in  the  reserve 
corps  may,  however,  be  used  to  enable  a  physician  to 
make  a  transfer  to  another  state.  It  is  a  necessity  for 
the  national  government  that  it  have  an  efficient  medi- 
cal corps  for  the  army  and  for  the  navy.  There  is  need 
for  a  larger  service  in  time  of  war  than  during  peace. 
It  seems  advisable,  therefore,  that  such  additional  sur- 
geons be  commissioned  and  trained  before  their  serv- 
ices may  be  needed.  This  is  the  foundation  for  the 
reserve  corps.  It  is  not  impossible  that  such  commis- 
sions in  the  reserve  corps  may  be  sufficient  authority 
for  a  physician  or  surgeon  to  practice  in  any  state  in 
the  union.  If  the  present  law  relative  to  the  organiza- 
tion of  the  corps  does  not  give  that  authority  it  is  pos- 
sible that  it  may  be  made  to  cover  this  point.  Clearly, 
it  is  for  the  interest  of  the  government  that  such  men 
while  in  reserve  shall  not  be  objects  of  expense  to  the 
national  government,  and  to  prevent  such  govern- 
mental obligation,  while  at  the  same  time  keeping  them 
in  training  for  possible  use,  it  is  necessary  that  they  be 
permitted  to  engage  in  private  practice  of  their  pro- 
fession. 

§  427.  What  is  medical  practice?  The  exact  word- 
ing of  the  statute  governing  the  practice  of  medicine 
must  decide  in  every  case  as  to  how  far  it  may  apply. 
It  would  seem  reasonable  to  include  everything  per- 
taining to  the  practice  of  medicine  as  medical  prac- 
tice— adding  the  letters  M.  D.  after  one's  name  or 
calling  oneself  "doctor,"  and  particularly  when  one 
advertises  or  holds  himself  out  as  competent  to  treat 
diseases.  The  courts  have  not  always  been  liberal  in 
their  application  of  the  statutes,  and  sometimes  they 
have  been  rather  too  lenient,  possibly,  with  real  vio- 


674  PUBLIC   HEALTH   ADMINISTRATION 

lators  of  the  law.  The  fitting  of  glasses  for  defective 
vision  is  a  legitimate  portion  of  medical  practice  in 
the  estimation  of  most  members  of  the  medical  pro- 
fession. The  work  requires  something  more  than  sim- 
ply finding  the  lense  which  gives  the  greatest  relief. 
The  association  of  the  action  of  the  eye  with  the  nerv- 
ous system  is  so  intimate  that  an  ocular  defect  may 
have  serious  results  upon  the  rest  of  the  human  sys- 
tem. An  error  in  correction  of  visual  defects  might 
seriously  increase  the  patient's  troubles.  Very  fre- 
quently the  visual  defect  is  associated  with  some 
trouble  which  needs  more  than  glasses,  but  because 
suitable  glasses  have  been  found  the  disease  is 
neglected,  and  permanent  harm  results.  Nevertheless, 
fitting  glasses  has  been  declared  not  to  be  practicing 
medicine.37  On  the  other  hand,  the  giving  of  oint- 
ments, salves,  and  eye-water  for  the  eyes  is  practic- 
ing medicine.38  The  confusion  which  may  be  found 
between  the  statements  of  different  courts  as  to  the 
same  question  comes  largely  from  the  changing  condi- 
tion of  the  science  of  medicine,  and  the  imperfect  way 
in  which  evidence  may  be  presented. 

What  is  here  said  relative  to  the  practice  of  medi- 
cine applies  equally  to  each  of  the  several  professions 
which  are  being  properly  licensed  in  the  interest  of 
health.  There  may  be  too  great  a  tendency  to  extend 
this  system  of  license  beyond  its  rational  scope.  Thus, 
to  guard  against  the  dangers  which  may  lurk  in  the 
barber  shop  it  may  very  well  be  that  the  regulation  of 
the  shop  is  far  more  important  than  the  determination 
as  to  the  knowledge  of  the  applicant  for  license.  How- 

37  People  v.  Smith,  208  111.  31. 

38  State   v.    Blumenthal,    125    S. 
W.  R.  1188. 


LICENSES  675 

ever,  barbers'  laws  have  been  upheld.39  In  the  con- 
trol of  barber  shops  in  the  interest  of  health  it  is  neces- 
sary to  keep  a  constant  supervision.  The  superficial 
knowledge  which  a  barber  may  have  of  infectious  dis- 
eases is  not  sufficient  to  dignify  his  art  with  the  title 
of  profession.  With  the  exception  of  the  disease  com- 
monly called  barbers'  itch,  infection  in  barber  shops 
is  probably  rare.  The  prevention  of  such  ills  must 
depend  chiefly  upon  the  strict  observance  of  sanitary 
regulations.  Because  of  their  slight  scientific  knowl- 
edge and  the  superficiality  of  its  character,  barbers 
themselves  are  incompetent  to  make  such  rules  and 
regulations.  In  proportion,  therefore,  as  dependence 
is  placed  upon  the  barber's  knowledge,  rather  than 
upon  compliance  with  regulations  formulated  by  the 
sanitary  authorities  of  the  state  or  municipality,  it  will 
be  found  that  the  protection  of  the  state  will  be 
unstable.  It  is  perfectly  proper  that  barber  shops 
should  be  licensed  for  control  under  police  power.  The 
license  of  barbers  themselves  as  members  of  a  pro- 
fession does  not  seem  to  us  justifiable.  Pharmacy  is  a 
profession,  and  it  is  the  pharmacist  who  should  be 
licensed  rather  than  the  drug  store.  The  pharmacist 
may  properly  be  examined.  There  is  little  necessity 
for  police  supervision  over  a  pharmacy  which  is  under 
the  control  of  a  competent  pharmacist.  This  distinc- 
tion between  the  license  of  an  individual  and  the 
license  of  his  business  for  police  control  seems 
important. 

The  supreme  court  of  Missouri  upheld  as  constitu- 
tional   a   statute  regulating  the  barber  shops,   even 

39  State  v.  Sharply,  31  Wash. 
191 ;  State  v.  Zeno,  81  N.  W.  748, 
79  Minn.  80. 


676  PUBLIC   HEALTH   ADMINISTRATION 

though  it  applied  only  to  cities  of  more  than  50,000 
inhabitants.40  On  the  other  hand,  the  Texas  law  was 
declared  unconstitutional  because  in  its  operation 
exception  was  made  of  the  barbers  at  certain  schools 
and  at  eleemosynary  institutions,  and  in  towns  of  1000 
inhabitants  or  less,  such  exceptions  amounting  to  a 
discrimination.41  The  court  said  that  sanitary  regula- 
tions should  operate  upon  all  alike,  when  subject  to 
the  same  conditions.  In  Ehode  Island  the  barbers' 
law  was  attacked  on  several  points:  first,  that  the 
search  authorized  for  the  sanitary  inspection  of  bar- 
ber shops  was  a  violation  of  the  state  constitution, 
which  declared  the  people  of  the  state  to  be  secure 
against  unreasonable  searches  and  seizures.  On  this 
point  the  court  said  that  the  inspection  authorized  was 
no  such  search  as  was  intended  by  that  provision  of 
the  constitution.  The  examiner  is  not  authorized  to 
take  any  summary  action,  such  as  seizure  of  objection- 
able tools,  appliances,  or  furnishings ;  but  the  examina- 
tion is  made  only  for  the  purpose  of  ascertaining  the 
sanitary  condition  thereof,  and  to  enable  the  board  to 
judge  whether  or  not  the  law  is  being  obeyed.  Other 
objections  to  the  statute  were  based  upon  the  fact  that 
it  applied  only  to  towns,  after  adoption  by  town  coun- 
cil. The  law  was  upheld.42  The  New  Jersey  court 
recognized  the  fact  that  local  boards  of  health  have 
ample  power  to  prevent  the  spreading  of  contagious 
skin  diseases  in  barber  shops.43 

§  428.  Revocation  of  license.  License  under  police 
power  is  only  a  means  to  an  end.  Its  existence  is  an 
evidence  that  the  particular  business  or  occupation 

40  Ex  parte  Lucas,  61  S.  W.  218.  42  state  v.  Arneno,  72  Atl.  216. 

41  Jackson  v.  State,  117  S.  W.  43  La  Porta  v.  Board  of  Health, 
818.                                                                42  Vr.  88. 


LICENSES  677 

has  in  it  a  possibility  of  harm  for  the  community;  and 
to  guard  against  that  evil  influence  the  state,  possibly 
through  the  instrumentality  of  the  city,  attempts  by 
means  of  the  license  to  keep  track  of,  and  control  the 
occupation  or  business.  It  would  be  contrary  to  pub- 
lic policy  were  the  governmental  body  to  resign,  even 
for  a  given  time,  all  control  over  the  matter.  In  fact 
it  has  been  generally  recognized  that  the  police  power 
is  so  inherently  a  part  of  government  that  it  cannot  be 
alienated,  and  the  constitutions  of  several  of  the  states 
specially  provide  against  this  bargaining  away  of 
police  control.  (§  212.)  The  granting  of  a  license  in 
the  liquor  business  does  not  create  a  contract.44 
Though  in  some  of  the  earlier  cases  it  was  held  that  a 
liquor  license  could  not  be  revoked,  it  is  now  generally 
agreed  that  a  liquor  license  can  be  revoked  at  any 
time  during  its  life  for  cause.  The  fact  that  a  milk 
dealer  has  obtained  a  license  is  no  defense  for  him  in 
continued  violation  of  the  ordinances  of  the  city,  and 
should  he  conduct  his  business  in  an  insanitary  man- 
ner, it  would  seem  to  be  the  duty  of  those  in  authority 
to  cancel  his  license.44*  All  statutes  or  ordinances  pro- 
viding for  license  under  police  power  should  also  con- 
tain a  provision  for  revocation  of  license.  Such  revo- 
cation must,  of  course,  be  made  only  for  cause.  In  the 
case  of  Hawker  v.  New  York  45  the  revocation  was  on 
account  of  a  crime  committed  years  before.  Professor 
Freund  questions  the  justice  of  this  revocation,45* 
arguing  that  Hawker  had  acquired  a  right,  and  that 
the  license  was  then  essentially  a  contract.    If,  how- 

44  Calder  v.  Kurby,  5  Gray,  597.  45  Hawker  V.  New  York,  170  U. 

44a  State  v.   Milwaukee,    121   N.  S.  189. 

W.  658;  People  v.  Health  Depart-  45a  Police  Power,  546. 
ment,  New  York,  82  N.  E.  187. 


678  PUBLIC   HEALTH   ADMINISTRATION 

ever,  the  commission  of  crime  is  a  moral  reason  why  a 
man  should  not  be  licensed  to  practice  medicine,  it 
would  seem  to  be  a  valid  reason  for  denying  him  the 
right  to  practice  whenever  it  might  be  discovered. 
Since  the  revocation  must  depend  largely  upon  the 
statutory  enactment,  the  exact  wording  of  the  enact- 
ment must  govern  the  revocation.  A  case  arising  in 
Missouri  was  that  in  which  a  physician  was  denied  the 
right  to  continue  in  practice  on  the  ground  that  he  was 
guilty  of  "unprofessional  and  dishonorable  conduct", 
and  that  he  was  willing  to  commit  a  criminal  abortion. 
The  state  statute  under  which  he  was  suspended  pro- 
vides that  the  board  may  revoke  licenses  for,  among 
other  things,  producing  criminal  abortion  but  the 
specifications  in  the  act  were  not  intended  to  exclude 
all  other  acts  for  which  licenses  may  be  revoked.  The 
court  says  that  the  appellant,  through  his  license  to 
practice  medicine,  and  through  his  ability  and  indus- 
try, had  become  possessed  of  at  least  a  valuable  privi- 
lege— perhaps  a  property  right — which  had  been  sus- 
pended by  the  action  of  the  respondents  for  his  alleged 
violation  of  the  laws  of  the  state.  The  court  found 
nothing  in  the  brief  of  the  attorney  general  to  intimate 
that  the  conviction  and  suspension  of  the  appellant 
could  be  sustained  on  the  advertisement  which  he 
published.  There  was  no  crime  in  the  advertisement 
itself,  nor  was  hearsay  evidence  of  another  physician 
to  the  effect  that  the  appellant  bore  the  reputation  of 
being  a  criminal  abortionist  sufficient.  The  statute, 
in  so  far  as  it  authorizes  the  revocation  of  licenses  of 
physicians,  is  highly  penal  and  cannot  be  expanded 
or  enlarged  beyond  its  letter  or  spirit.  Its  general 
specification  is  directed  solely  against  certain  acts,  not 


LICENSES  679 

against  evil  thoughts  or  a  willingness  to  perform 
wrongful  acts.40 

It  was  not  a  question  of  what  might  have  been  done, 
but  what  was  done  in  the  Spriggs  case.  Doubtless  the 
legislature  might  have  made  the  publishing  of  an  ad- 
vertisement sufficient  cause  for  revoking  license,  but 
it  did  not  do  so.  Neither  was  the  advertisement  an 
open  offer  to  commit  abortion,  though  it  might  pos- 
sibly be  so  interpreted.  Neither  was  it  a  question  of 
whether  or  not  the  doctor  might  commit  abortions. 
That  was  really  a  question  for  the  future.  In  fact, 
he  had  not  been  convicted  of  having  performed  abor- 
tions. The  board  had  to  deal  with  facts,  not  with 
theories  or  intentions. 

Statutes  providing  for  revocation  of  license  should 
specify  how  the  license  is  to  be  revoked.  It  would  be 
proper  to  specify  as  a  cause  for  revocation  the  com- 
mission of  crime;  a  certification  of  conviction,  duly 
filed  with  the  proper  officer  might  then  be  sufficient 
for  the  cancellation  of  the  license.  Ordinarily  the  rev- 
ocation must  depend  upon  some  sort  of  trial.  This 
trial  might  be  before  a  regular  court,  upon  complaint 
of  the  executive,  and  upon  the  filing  of  the  finding  of 
the  court  the  license  could  be  cancelled.  Or  the  trial 
could  be  within  the  executive  department.  If  so  pro- 
vided the  statute  should  specify  how  notice  is  to  be 
served  upon  the  party  whose  rights  are  to  be  sus- 
pended. If  the  license  is  to  be  cancelled  by  a  board, 
the  meeting  of  the  board  should  be  formally  recorded, 
and  a  copy  of  the  certificate  of  the  serving  of  the  notice 
should  be  recorded  in  the  minutes  of  the  meeting.    If 

«  State  ex  rel  Spriggs  v.  Robin-     ■ 
son  et  al.,  161  S.  W.  1169. 


680  PUBLIC    HEALTH   ADMINISTRATION 

the  respondent  be  present  he  should  be  given  trial. 
If  he  do  not  respond,  or  after  trial  in  case  he  be  pres- 
ent, the  board  may  take  such  action  as  the  facts  war- 
rant, and  the  action  should  be  fully  recorded.  Unless 
otherwise  provided  by  the  statute,  this  executive  hear- 
ing would  be  final,  though  questions  of  law  might  be 
reviewed  in  court.47  (§  141.)  Purely  ex  parte  find- 
ings, because  they  violate  due  process,  should  never 
be  used,  further  than  temporarily  in  emergencies. 

There  is  another  class  of  cases  in  which  licenses 
might  and  should  be  cancelled  or  suspended. 
Statutes  sometimes  make  habitual  drunkenness  a 
cause  of  revocation  of  medical  license.  That  condi- 
tion is,  in  a  sense,  a  crime  for  which  the  culprit  may 
be  punished.  It  is  a  specific  act,  or  result  of  such 
action.  The  reason  why  the  license  should  then  be 
revoked  is  that  the  person  who  deals  with  the  sacred- 
ness  of  human  life  should  be  in  his  right  mind,  and 
with  an  unclouded  brain.  It  sometimes  happens,  how- 
ever, that  physicians  are  in  practice  whose  mental 
state  is  such  as  to  unfit  them  for  their  work,  though 
it  would  be  difficult  to  get  them  committed  to  an 
asylum.  The  consequences  of  their  errors  of  judgment 
may  be  serious.  These  are  not  cases  of  specific  acts, 
but  of  conditions  due  to  disease.  Such  persons  would 
not  be  given  licenses  were  they  to  request  it  in  that 
state — why  should  they  retain  their  right  to  practice 
when  the  rights  of  the  citizens  are  no  longer  pro- 
tected 1  It  is  only  by  revoking,  or  suspending,  a  license 
to  practice  medicine  that  the  safety  of  the  people  is 
guarded,  when  the  practitioner  is  in  a  mental  state 
which  prevents  the  use  of  clear  judgment. 

*"  Nishimura  Ekiu  v.  U.  S.,  142 
U.  S.  651. 


CHAPTER  XVI 

WATER  SUPPLIES DRAINAGE  AND   GARBAGE  DISPOSAL 

water  §  437.  Water  on  trains  and  boats. 
§  430.  Natural    unity   of   problems  sewage 

of  disposal  of  waste  with  §  440.  Municipal    sewage   problem. 

water  supply.  §  441.  Sewer  a  nuisance. 

§  431.  State    and    municipal    rela-  §  442.  Jurisdiction. 

tionship    contrasted.  §  443.  Eelation     of     problems     to 
§  432.  Duty     of     city    to     provide  natural  drainage. 

water  supply.  garbage 

§  433.  Franchise  granted  to  private  §  450.  Garbage     as     a     municipal 

corporations.  problem. 

§  434.  Municipal  plants.  §  451.  City  collection. 

§  435.  Liability  of  municipality.  §  452.  Ankylostomiasis  or  the 
§  436.  State  supervision.  hook-worm  disease. 

Water 

§430.  Natural   unity   of   problems   of   disposal  of 

waste  with  water  supply.  The  subjects  of  water  sup- 
ply and  of  sewage  and  garbage  disposal  are  intimately 
associated.  The  line  between  garbage  and  sewage  is 
not  always  clearly  drawn,  and  sewage  is  a  frequent 
pollution  of  water  supplies.  In  country  districts 
neither  of  these  problems  may  assume  an  aspect  de- 
manding public  attention.  They  are  solved  upon  the 
premises  of  the  individual  citizen — he  digs  his  own 
well;  what  little  sewage  he  may  have  may  be  easily 
diverted  where  it  enriches  the  soil  or  is  destroyed  by 
nature.  The  household  garbage  is  fed  to  the  pigs  and 
poultry.     On   the   farm   these   materials   have   value 

681 


682  PUBLIC    HEALTH   ADMINISTRATION 

while  in  the  city  they  are  waste.  The  farmer  may 
easily  prevent  these  substances  from  being  a  nuisance 
to  himself  or  his  neighbors,  and  they  become  sources 
of  profit  in  the  place  of  causes  for  expenditure.  Un- 
fortunately, a  growing  proportion  of  our  population 
live  under  the  hampering  restrictions  of  city  surround- 
ings. Many  families  reside  in  a  single  building 
crowded  upon  a  small  city  lot.  There  may  be  no 
portion  of  the  lot  uncovered  by  the  edifice,  no  place 
in  which  a  well  could  be  dug.  Even  in  the  larger  city 
yards  a  well  is  an  unsafe  source  from  which  to  obtain 
the  water  for  household  purposes,  for  the  drainage 
area  is  very  likely  to  include  points  threatening  pollu- 
tion. Garbage  might  be  burned  upon  the  premises  in 
many  places ;  but  where  gas  is  used  for  fuel,  where  the 
rooms  are  small  and  crowded,  and  where  ventilation 
is  difficult,  even  such  destruction  is  practically  impos- 
sible for  the  individual  family.  The  care  of  dejecta, 
dish-water,  and  laundry  waste  is  even  more  impossible 
for  the  family  residing  in  the  city,  except  by  communal 
effort.  It  has  therefore  become  necessary  that  all  of 
these  subjects  be  at  least  regulated  by  some  govern- 
mental authority. 

Under  modern  methods  of  life  the  inhabitants  of  a 
city  demand  large  quantities  of  water,  and  they  must 
have  an  enormous  amount  of  sewage.  To  insure  its 
purity  the  water  must  frequently  be  brought  from  a 
distance.  The  sewage  of  a  given  city  may  make  its 
way  towards  the  point  at  which  the  water  supply  is 
obtained,  as  happened  so  long  at  Chicago;  or,  if 
diverted  elsewhere,  it  may  be  a  source  of  danger  for 
other  municipalities.  It  therefore  seems  increasingly 
necessarv  that  the  state  become  interested  in  both 


WATER  SUPPLY DRAINAGE GARBAGE  683 

problems.  This  it  may  properly  do  under  its  police 
power.  The  supply  of  city  water  is  no  longer  purely 
a  commercial  matter.  It  is  necessary  that  citizens  and 
cities  be  protected  from  possible  harm  which  may  come 
in  the  waste  from  others. 

§  431.  State  and  municipal  relationship  contrasted. 
It  must  be  remembered  that  there  is  a  marked  differ- 
ence between  the  relationship  of  the  state  and  the 
municipality  to  the  water  and  sewage  problems.  One 
of  the  prime  objects  sought  in  the  incorporation  of 
cities  is  to  provide  for  such  matters  of  common  concern 
as  individual  citizens  cannot  so  well  manage  them- 
selves. Since  the  citizens  may  not,  each  for  himself, 
obtain  his  needed  water  supply  at  home,  he  must 
arrange  for  it  to  be  brought  to  him  either  in  bottles, 
casks,  or  other  retainers,  or  through  a  system  of  pipes. 
He  may  make  his  contract  with  an  individual,  or  with 
a  private  corporation.  As  a  part  of  its  police  power 
the  city  may  supervise  this  business.  In  its  super-: 
vision  the  municipality  may  grant  franchises.  Since, 
however,  it  is  a  subject  which  is  of  vital  concern  to  all 
the  inhabitants,  the  public  corporation  may  generally 
enter  the  business  itself,  thus  competing  with  the 
private  corporations.  In  a  small  town  where  many 
of  the  citizens  still  obtain  their  supply  from  private 
wells,  because  of  the  fact  that  only  a  relatively  small 
portion  of  the  taxpayers  find  it  necessary  to  buy  water, 
the  franchise  may  perhaps  be  the  best  solution;  but 
in  a  more  thickly  settled  community  the  city  may 
transact  all  the  business  more  economically  than  the 
private  corporation.  To  divide  the  expense  equably 
among  the  customers  the  city  charges  users  in  propor- 
tion to  the  amount  each  consumes.     There  may  be  a 


684  PUBLIC    HEALTH   ADMINISTRATION 

net  gain  or  net  loss  to  the  corporation,  but  in  such  a 
matter  the  city  is  a  business  corporation  and  as  such 
it  assumes  certain  responsibilities  and  liabilities. 

The  state,  on  the  other  hand,  is  not  a  corporation^ 
It  is  not  in  the  business  of  selling  water;  but  in  its 
governmental  capacity  of  protecting  its  citizens  from 
harm,  it  may,  and  should,  protect  the  purity  of  water 
supplies.  This  protection  is  often  impossible  for  the 
city  because  the  source  of  supply  is  frequently  not 
within  the  jurisdiction  of  the  city.  Similarly,  when 
the  city  undertakes  to  take  the  place  of  private  con- 
tractors in  removing  the  garbage  and  sewage  it  may 
be  considered  as  acting  in  its  corporate  rather  than  in 
its  governmental  capacity;  but  it  is  the  duty  of  the 
state  to  protect  other  communities  from  being  injured 
by  the  sewage  which  a  city  throws  away.  The  interest 
of  the  city  is  to  get  rid  of  its  waste;  the  state  sees  to 
it  that  one  municipality  does  not  commit  a  nuisance 
upon  others. 

§  432.  Duty  of  city  to  provide  water  supply.  It  is 
the  duty  of  municipalities  to  provide  a  plentiful  supply 
of  pure  water  either  as  a  corporation  or  in  its  govern- 
mental capacity.  This  means  that  the  city  must  see 
to  it  that  its  inhabitants  are  provided  with  water  of 
such  a  composition  as  will  serve  for  all  their  needs  and 
be  free  from  injurious  chemicals  and  pathogenic 
bacteria,  or  protozoa.  This  does  not  mean  that  the 
water  must  be  chemically  pure.  The  most  satisfactory 
spring  water,  clear  as  crystal,  and  cooled  by  nature, 
contains  a  varying  quantity  of  earthy  salts,  and  those 
very  salts  may  be  useful  in  the  nutrition  of  the  body. 
Even  salts  which  are  beneficial  in  small  quantities  may 
be  harmful  in  larger  proportions.     Decaying  animal 


WATER  SUPPLY — DRAINAGE — GARBAGE  685 

and  vegetable  matter,  on  the  other  hand,  is  always 
objectionable.  Such  materials  may  contain  harmful 
germs  at  any  time,  and  they  furnish  food  for  patho- 
genetic growths.  Formerly  the  ordinary  tests  used 
to  determine  the  character  of  the  water  were  purely 
chemical.  Today  the  chief  tests  are  bacterial.  It  is 
not  shown  that  the  colon  bacillus  is  per  se  harmful,  but 
its  presence  is  considered  a  sure  indication  of  danger. 
Though  the  study  of  the  Hygienic  Laboratory  in  the 
Panama  Canal  Zone  indicates  that  the  colon  bacillus 
may  be  present  without  pullution  with  human  excre- 
ment, the  only  safe  way  is  to  regard  it  as  an  evidence 
of  such  contamination.  If  the  colon  bacillus  derived 
from  human  sources  find  its  way  into  the  water  supply 
we  may  at  any  time  find  it  accompanied  by  its  cousin 
which  produces  typhoid  fever.  Water  containing  the 
colon  bacilli  is  suspicious  in  proportion  to  the  number 
of  those  bacteria  per  cubic  centimeter.  It  is  the  gov- 
ernmental duty  of  the  city  to  prevent  the  use  of  water 
containing  harmful  germs,  thus  to  prevent  illness 
among  the  citizens. 

It  is  the  duty,  therefore,  of  the  city  to  see  that 
there  is  furnished  to  its  inhabitants  plenty  of  water. 
As  Mr.  Justice  Harlan  remarked,1  ' '  The  contrary  can- 
not be  maintained  unless  we  hold  that  a  municipal 
corporation  may  by  mere  implication  bargain  away 
its  duty  to  protect  the  public  health  and  safety,  as  they 
are  involved  in  supplying  the  people  with  sufficient 
water.  Nothing  can  be  more  important  or  vital  to  any 
people  than  that  they  should  be  supplied  with  pure, 
wholesome  water."    The  fact  that  even  an  exclusive 

i  Vicksburg  v.  Vicksburg  Water 
Works  Co.,  202  U.  S.  453. 


686  PUBLIC    HEALTH    ADMINISTRATION 

franchise  has  been  given  by  the  city  to  a  water  com- 
pany does  not,  therefore,  put  a  stop  to  its  control  over 
the  subject.  If  the  company  furnishes  unwholesome 
water  it  is  the  duty  of  the  city  to  use  its  police  power 
to  stop  such  sale;  and  if  the  company  does  not  then 
provide  a  safe  supply,  its  non-user  would  justify  the 
annulment  of  the  franchise. 

§  433.  Franchise  granted  to  private  corporations. 
It  frequently  happens,  especially  in  smaller  communi- 
ties, that  for  financial  reasons  it  seems  best  to  meet  the 
obligation  of  supplying  water,  gas,  and  electricity  to 
the  citizens  by  granting  a  franchise  for  this  purpose  to 
a  private  corporation.  The  amount  of  the  initial  cost 
of  the  plant  may  be  temporarily  prohibitive  for  the 
city.  On  the  other  hand,  private  investors  will  gen- 
erally be  loath  to  make  such  an  outlay  unless  they 
be  assured  of  sufficient  permanency  for  the  business 
to  guarantee  a  safe  profit.  Exclusiveness  is  an  im- 
portant element  in  the  contract.  The  authority  of  the 
city  to  make  such  a  bargain  must  be  clearly  found 
in  the  charter  or  in  the  general  statutes  of  the  state; 
and  such  provisions  will  be  very  strictly  construed  by 
the  courts.2  Unless  such  authority  be  clearly  given 
to  the  city,  it  will  be  presumed  not  to  exist.  Under  the 
general  authority  to  grant  a  franchise  the  city  may 
not  grant  exclusive  rights;  but  since  municipal  com- 
petition would  be  destructive  of  private  business, 
policy  may  dictate  that,  in  granting  a  franchise  to  a 
water  company,  the  city  may  properly  agree  not  to 
establish  a  competing  plant  within  a  specified  time.3 

2  Minturn    v.    Larne,    23    How.  3  Walla  Walla  v.  W.  W.  Water 

435;   Wright   v.   Nagle,   101   U.   S.       Co.,  172  U.  S.  1. 
791. 


WATER  SUPPLY — DRAINAGE GARBAGE  687 

When  the  grant  contains  no  covenant  that  the  city  will 
not  itself  establish  a  plant,  it  has  been  held  that  silence 
permits  such  establishment,  but  that  it  may  not  tax 
the  corporation  to  meet  the  expense  of  such  competing 
enterprise,  nor  discriminate  either  directly  or  indirectly 
in  taxation  against  those  citizens  who  continue  to  pat- 
ronize the  private  corporation.4     A  prior  legislative 
grant  of  exclusive  privilege  has  been  held  sufficient  to 
prevent  the    grant  of  a  municipal    franchise,  and  is 
restricted  only  for  real  or  presumed  necessity  for  the 
protection  of  public  health,  or  similar  cause  for  the 
use  of  police  power.5     Should  the  state  courts  hold 
that  under  the  state  constitution  the  legislature  has  no 
authority  to  bind  its  successors,  there  would  be  no 
valid  contract;  and  the  federal  courts  would  probably 
follow  the  construction  of  the  state  courts  except  where 
the  federal  court  itself  holds  that  no  contract  exists.6 
A  franchise  granting  a  monopoly  against  a  common 
right  may  be  granted  for  police  purposes;  and  a  water 
franchise  may  be  thus  interpreted.     But  such  a  con- 
tract is  still  subject  to  regulations  in  the  interest  of 
health  and  safety,  and  it  would  seem  that  in  case  of 
necessity  it  might  be  abrogated  before  the  expiration 
of  its  term,  but  this  necessity  must  be  under  police 
power  as  for  preservation  of  health,  not  for  commercial 
reasons.7     It  might,  however,   be  held  necessary  to 

4  Skaneateles,  etc.,  Water  Co.  v.  v.  Elvers,  115  U.  S.  674;  St.  Taur- 

Skaneateles,  161   N.   Y.   154;   s.  c.  many  Water  Works  Co.  v.  New  Or- 

184  U.  S.  354 ;  North  Springs  Wa-  leans  Water  Works  Co.,  120  U.  S. 

ter  Co.  v.  Tacoma,  21  Wash.  517;  64. 

Glenwood     Springs     v.     Glenwood  6  Freeport   Water    Co.   v.    Free- 
Light  and  Water  Co.,  202  F.  678;  port,    180   U.    S.   587;    Douglas   v. 
Washington-Oregon    Corp.    v.  Che-  Kentucky,   168   U.   S.  488. 
halis    202  F.  501.  7  Butchers     Union     v.     Crescent 
•New  Orleans  Water  Works  Co.  City,  etc.,  Co.,  Ill  U.  S.  746. 


688  PUBLIC   HEALTH   ADMINISTRATION 

acquire  the  original  plant  by  the  use  of  tjie  power  of 
eminent  domain.8  Even  a  grant  of  exclusive  franchise 
may  not  be  so  exclusive  as  at  the  first  glance  appears. 
Franchises  must  be  literally  construed.  We  may 
quote  again  from  Mr.  Justice  Harlan:9  ''We  are 
forbidden  to  hold  that  a  grant,  under  legislative 
authority,  of  an  exclusive  privilege  for  a  term  of  years, 
of  supplying  a  municipal  corporation  and  its  people 
with  water  drawn  by  means  of  a  system  of  waterworks 
from  a  particular  stream  of  water,  prevents  the  state 
from  granting  to  other  persons  the  privilege  of  sup- 
plying during  the  same  period,  the  same  corporation 
and  people  with  water  drawn  in  like  manner  from  a 
different  stream  or  river." 

A  municipality  cannot  bargain  away  any  portion  of 
its  police  power.10  While  it  might  violate  a  moral 
obligation  to  take  advantage  of  a  technicality  in  a 
grant  of  franchise  to  establish  competing  works,  it 
becomes  a  duty  to  provide  other  means  of  supply  when 
the  first  company  fails  to  furnish  pure  water. 

In  making  a  contract  with  a  private  corporation  or 
firm  to  supply  water  for  the  municipality  it  is  very 
proper  that  a  stipulation  shall  be  made  that  the  water 
shall  be  pure.  This  does  not  mean  that  it  shall  be 
chemically  pure,  but  that  it ' '  shall  be  free  from  pollu- 
tion deleterious  for  drinking  and  domestic  purposes. ' ' 
It  may  not  require  the  installation  of  a  filter;  but  it 
does  require  that  the  contractor  furnish  means  for 
preventing  contamination  under  all  conditions  likely 
to  occur.11 

s  Freund,  Police  Power,  680.  « Mayor     of     Jersey     City     v. 

9  Stein   v.   Bienville  Water   Sup-       Flynn,  74  N.  J.  Eq.  104. 
ply  Co.,  141  U.  S.  67. 

io  Freund,    Police    Power,    362, 
561,    562. 


WATER  SUPPLY — DRAINAGE GARBAGE  689 

§  434.  Municipal  plants.  Providing  pure  water  for 
its  citizens  is  a  legitimate  use  of  the  police  power  of 
a  city.12  The  municipality  may  then  enter  upon  the 
business  and  establish  its  own  plant.  This  involves  a 
large  initial  outlay  which  may  sometimes  exceed  the 
authority  of  the  city  to  pledge.  It  has  been  held,  how- 
ever, that  when  a  city  has  contracted  for  waterworks 
to  be  paid  for  in  annual  installments,  or  monthly,  if  it 
can  pay  each  installment  when  due  without  exceeding 
the  limit  there  is  no  indebtedness,  and  therefore  no 
violation  of  the  constitution  as  there  is  no  debt  until 
the  money  is  due.13 

Adjacent  cities  may  sometimes  conserve  the  interests 
of  their  citizens  by  using  the  same  municipal  plant. 
For  governmental  reasons  this  cannot  well  be  operated 
by  the  two  or  more  corporations  conjointly.  One  cor- 
poration must  assume  the  responsibilities  of  maintain- 
ing the  plant,  and  sell  the  water  to  neighboring  cities 
as  it  does  to  its  own  citizens.  The  sale  of  water  by 
the  municipality  to  its  citizens  has  been  held  to  be 
business  of  a  private  nature.14  It  would  ordinarily  be 
held,  therefore,  that  if  it  may  be  done  profitably  in 
the  interests  of  its  own  citizens,  a  city  may  sell  also  to 
neighboring  municipalities;  however,  in  at  least  one 
case  it  was  held  that  authority  to  supply  its  own  cit- 
izens did  not  include  authority  to  carry  water  outside 
its  limits,  and  to  sell  to  another  municipality.15    While 

12  Kennedy    v.    Phelps,    10    La.  14  Illinois  Trust  &  Savings  Bank 

Ann.    227;    Suffield    v.    Hathaway,  v.    Arkansas    City,    76    Fed.    Rep. 

44  Conn.  521;   Smith  v.  Nashville,  271;   Bailey  v.  New  York,  3  Hill, 

88  Tenn.  464;   Hale  v.  Houghton,  531;     Cincinnati    v.    Cameron,    33 

8  Mich.  458.  Ohio,  336 ;  Helena  Cons.  Water  Co. 

is  Walla    Walla    Water    Co.    v.  v.    Steele,   49    Pac.    382;    Western 

Walla  Walla,   60   Fed.   Bep.   957;  Savings    Fund    Soe.    v.    Philadel- 

Keihl  v.  South  Bend,  76  Fed.  Rep.  phia,  31  Pa.  183. 

921.  isHaupt's  Appeal,  125  Pa.  211. 


690  PUBLIC    HEALTH   ADMINISTRATION 

this  is  apparently  a  correct  statement  of  the  law,  it  is 
unfortunate,  and  where  so  restricted  common  interests 
suggest  that  the  law  be  amended.  It  has  sometimes 
been  held  also  that  the  power  to  sell  water  is  not  in  the 
nature  of  a  private  business.  It  is  granted  for  public 
use,  and  the  corporation  is  not  therefore  liable  for 
either  non-use  or  misuse.  "The  imposition  of  water 
rents  is  but  a  mode  of  taxation  and  a  part  of  the  gen- 
eral scheme  for  raising  revenue  with  which  to  carry  on 
the  work  of  government.  *  *  *  There  is  noth- 
ing connected  with  the  work  which  is  not  of  a  govern- 
mental and  public  nature. ' ' 16  One  use  of  the  water 
supply  is  for  fire  protection.  The  case  quoted  above 
arose  from  a  failure  to  furnish  sufficient  water  to  ex- 
tinguish the  fire,  and  that  failure  was  due  to  the  works 
not  being  kept  in  proper  condition.  It  seems  to  us 
that  such  a  case  is  very  different  from  injury  due  to 
the  water  actually  used  by  the  party.  There  is  no  con- 
tract with  the  customer  to  supply  any  stated  quantity. 
§  435.  Liability  of  municipality.  According  to  the 
general  rules  a  city  is  not  liable  for  malfeasance,  mis- 
feasance, or  nonfeasance  when  acting  in  its  purely  gov- 
ernmental capacity;  but  it  is  liable  in  matters  in  which 
it  conducts  a  business  for  the  profit  of  the  corporation 
or  its  members.  (§§  374,  375.)  When,  therefore,  it 
makes  no  charge  for  the  water  which  it  supplies,  it  is 
not  liable  en  tort; 17  but  if  it  charge  water  rates  upon 
users  it  may  be  held  liable.18     As  we  stated  before, 

is  Fire  Ins.  Co.  v.  Keesville,  148  Div.  124;  Chicago  v.  Selz,  Schwab 

N.  Y.  46.  &    Co.,    202    111.    545;    Augusta   v. 

17  Danaher  v.  Brooklyn,  51  Hun,  Lombard,  99  Ga.  282 ;  Whitfield  v. 

563;    Dillon,   Munic.    Corp.    985a.  Carrolton,  50  Mo.  App.  98;  Bailey 

"  Ingersoll,     Pub.     Corp.     214;  v.    Mayor,    3    Hill,    531;    Stock   v. 

Dillon,   Munic.   Corp.   981;    Milnes  Boston,  149  Mass.  410;  Aldrich  v. 

v.    Huddersfield,   L.   R.    10    Q.    B.  Tripp,  11  R.  I.  141; 


WATER  SUPPLY — DRAINAGE — GARBAGE  691 

there  should  be  recognized  a  marked  difference  be- 
tween an  injury  resulting  from  a  failure  in  the  supply, 
and  an  injury  caused  by  a  polluted  supply.  When  a 
city  undertakes  to  furnish  its  citizens  with  water  for 
domestic  use  it  is  under  obligation  to  furnish  pure 
water.  If,  therefore,  the  water  furnished  be  con- 
taminated, as  with  the  typhoid  germ,  and  injury  results 
it  may  well  be  assessed  damages  as  they  may  appear.19 
As  to  the  liability  of  a  city  for  damages  in  case  that 
typhoid  fever  germs  were  distributed  in  the  city  water 
supply  the  case  of  Keever  v.  Mankato,20  in  Minnesota, 
promises  to  be  a  leading  case  in  this  country.  The 
complaint  set  forth  not  a  mere  action  against  the  de- 
fendant to  recover  damages  because  the  city  failed 
to  provide  an  adequate  supply  of  pure  water.  The 
question  here  was  whether  the  city  was  liable  for, 
among  other  things,  recklessly  causing  dangerous  sub- 
stances like  common  sewage  and  other  filth  to  saturate 
its  water  supply  and  the  wells,  mains,  and  appurte- 
nances thereto.  The  first  essential  question  was  whether 
the  city  was  exempt  because  it  was  carrying  out  a  gov- 
ernmental function,  or  whether  it  was  liable  because  it 
operated  the  waterworks  in  its  private  or  corporate 
function.  The  defendant  naturally  insisted  that  it  was 
performing  merely  a  governmental  function.  But  the 
court  holds  that  it  was  liable  for  its  negligence  in  its 
private  or  corporate  capacity,  and  was  not  exempt  as 
carrying  out  a  governmental  function.  The  defendant 
also  insisted  that  the  city  could  make  no  profit  out  of 
its  operation  of  these  waterworks.    Doubtless  this  was 

iQMilnes  v.  Huddersfield,  L.  E.  20113  Minn.  55. 

10  Q.  B.  Div.  124;  Keever  v.  Man- 
kato, 113  Minn.  55;  see  also  Mc- 
Gregor v.  Boyle,  34  la.  268. 


692  PUBLIC    HEALTH   ADMINISTRATION 

in  a  general  way  true;  at  all  events  it  might  be  here 
admitted.  But  the  sequence  which  the  defendant 
sought  to  draw  did  not  at  all  follow :  i.  e.  that  therefore 
it  should  be  exempted  from  all  liability  for  mismanage- 
ment; for  the  city  is  liable  for  neglect  in  connection 
with  its  streets,  sidewalks,  and  sewers,  from  which  in 
their  very  nature  no  profit  is  or  can  be  made.  The  city 
operates  the  waterworks  for  profit  in  the  sense  that  it 
is  voluntarily  engaged  in  the  same  business  which 
when  conducted  by  private  persons  is  operated  for  pro- 
fit. The  city  itself  makes  a  reasonable  and  varying 
charge.  The  undertaking  is  partly  commercial.  It  is 
enough  that  the  city  is  in  a  profit-making  business. 

Then  the  defendant  insisted  that  it  would  not  be 
sound  policy  to  open  the  door  and  permit  actions  like 
the  present  to  be  maintained  for  the  reason  that  as  a 
result  the  defendant  city,  as  well  as  any  other  city, 
would  be  liable  at  any  time  to  have  the  same  misfor- 
tune and  would  be  bankrupted  thereby.  But  the  court 
must  regard  the  defendant's  figures  as  purely  hypo- 
thetical. The  question  is  one  of  general  principles 
recognized  by  the  law,  and  not  of  the  private  views 
of  court  or  counsel  as  to  what  the  convenience  or  neces- 
sity of  a  particular  city  may  dictate  under  particular 
circumstances.  The  general  experience  of  public  and 
private  waterworks  is  that  ordinarily  their  operation 
involves  no  such  financial  disaster  as  the  defendant 
portrayed.  It  is  obvious  that  a  sound  public  policy 
holds  a  city  to  a  high  degree  of  faithfulness  in  provid- 
ing an  adequate  supply  of  pure  water.  Nor  does  it 
appear  why  the  citizens  should  be  deprived  of  the 
stimulating  effects  of  the  fear  of  liability  on  the  energy 
and  care  of  its  officials;  nor  why  a  city  should  be 


WATER  SUPPLY — DRAINAGE — GARBAGE  693 

exempt  from  liability  while  a  private  corporation 
under  the  same  circumstances  would  be  held  respon- 
sible for  its  conduct,  and  made  to  contribute  to  the  in- 
nocent persons  it  may  have  damaged.  The  cases  in 
which  a  city  has  been  held  responsible,  or  irrespons- 
ible, for  damages  by  fire  consequent  on  an  inadequate 
supply  of  water  are  in  a  class  by  themselves.  From 
many  points  of  view  the  rule  holding  the  city  liable 
for  its  negligence  is  not  inconsistent  with  the  rule 
there  announced.  The  law  does  not  undertake  to 
achieve  the  impossible. 

The  defendant  also  urged  that  in  no  case  has  the  city 
been  held  liable  for  negligence  in  the  operation  of  its 
waterworks  unless  the  act  involved  a  trespass,  or  an 
invasion  of  a  direct  property  right.  Thus  water  escap- 
ing from  a  city  reservoir  runs  onto  another's  property 
and  does  damage;  this  is  trespass  and  there  is  liability. 
But  if  the  escaping  water  should  do  damage  to  a  person 
on  a  public  highway  there  would  be  no  trespass,  but 
the  law  would  recognize  liability.  Liability  of  the  city 
is  recognized  in  the  case  of  streets  and  sidewalks  which 
cannot  properly  involve  trespass.  Nor  did  the  defend- 
ant show  any  reason  for  imposing  liability  in  the  case 
of  trespass  or  the  breach  of  insurance  of  safety  which 
does  not  logically  apply  to  cases  of  negligence.  On  gen- 
eral principles  liability  for  negligence  is  more  just  and 
more  generally  recognized  because  it  is  based  on  culp- 
ability. 

Lastly,  the  court  holds  that,  on  the  assumption  that 
the  plaintiff's  intestate  could  have  maintained,  an  ac- 
tion against  the  city  had  he  lived,  his  administrator,  or 
administratrix,  could  maintain  an  action  under  the 
Minnesota  statutes. 


694  PUBLIC  HEALTH  ADMINISTRATION 

This  responsibility  of  the  city  presupposes  authority 
to  guard  its  source  of  supply  from  infection.21  Such 
power  may  be  given  by  legislative  enactment  but  it 
must  be  reasonably  exercised.  This  is  illustrated  by  a 
New  York  case,  which  though  abstractly  correct,  may 
be  of  doubtful  propriety  from  a  scientific  point  of 
view.22  In  this  case  it  was  held  that  a  health  depart- 
ment prohibition  of  the  harvestry  of  ice  on  a  source  of 
water  supply  was  unconstitutional,  as  taking  property 
without  compensation,  which  is  justified  only  by  abso- 
lute necessity.  Where  the  public  good  can  be  conserved 
by  the  regulation  of  a  right,  this  power  of  prohibition 
does  not  exist.  With  the  possibility  of  efficient  regula- 
tion, to  prohibit  the  cutting  of  ice  is  beyond  the  power 
of  the  health  officer,  and  a  contrary  ruling  would  work 
public  and  private  mischief. 

§  436.  State  supervision.  Very  frequently  the  source 
of  a  municipal  water  supply  is  beyond  the  jurisdiction 
of  the  corporation.  It  then  becomes  the  governmental 
duty  of  the  state  to  step  in  and  use  its  police  power. 
By  statutory  enactment  this  authority  may  be  properly 
conferred  upon  the  state  department  of  health.  As  illus- 
trating this  method  of  action  we  may  cite  a  Vermont 
case,23  in  which  it  was  held  that  police  powers  may 
properly  be  delegated  to  boards  of  health,  and  when  so 
delegated  the  agency  employed  is  clothed  with  power 
to  act  as  fully  and  efficiently  as  the  state  itself.  Though 
a  riparian's  right  to  reasonable  use  of  the  water  of  a 
pond  includes  the  right  to  bathe  and  swim  therein, 
such  right  was  not  primary,  but  incident  to  the  owner- 

21  Stone    v.    Heath,    179    Mass.  23  State  v.  Morse,  80  A.  189. 
385. 

22  People    v.    Kirk,    119    N.    Y. 
862. 


WATER  SUPPLY — DRAINAGE — GARBAGE  695 

ship  of  the  land.  Hence  a  regulation  of  the  State 
Board  of  Health  prohibiting  bathing  in  a  pond  from 
which  a  city  derives  its  water  supply  was  a  valid 
exercise  of  police  power.  A  frequent  necessity  for 
state  intervention  is  found  in  the  prevention  of  sewage 
pollution  of  streams,  ponds,  and  lakes  used  as  sources 
of  water  supply,  and  the  indications  are  that  this  use 
of  state,  and  perhaps  national  intervention  will  become 
more  frequent  and  more  important  in  the  future. 

§  437.  Water  on  trains  and  boats.    Whenever  cars 
are  designed  for  interstate  traffic  the  company  owning 
or  using  them  is  bound  to  equip  them  as  required  by 
act  of  Congress;  and  when  it  is  shown  that  a  railway 
company  is  using  the  car  for  transportation  purposes 
between  states,  sufficient  is  shown  to  justify  the  court 
in  ruling  that  the  act  of  Congress  is  applicable  to  the 
situation.24    In  the  state  of  Kentucky  it  was  held  that 
it  was  the  duty  of  all  persons  in  charge  of  railroads, 
steamboats,  and  private  conveyances,  to  obey  the  reg- 
ulations of  the  State  Board  of  Health.25  In  the  state  of 
Georgia  it  was  held  that  it  is  within  the  constitu- 
tional power  of  the  general  assembly  to  impose  upon  a 
railway  company  the  duty  of  providing  for  an  ade- 
quate supply  of  pure  drinking  water  for  its  passengers 
while  journeying  upon  its  cars,  and  to  provide  that  the 
corporation  shall  be  indicted,  prosecuted,  and  fined  for 
a  neglect  of  this  public  duty.26    It  has  formerly  been  a 
custom  for  the  railway  companies  to  provide  drinking 
water,  and  by  each  tank  to  keep  a  cup  or  glass.    This 
has    even    been    required    in    some    states    by    law. 

24  Voelker    v.    Chicago,    etc.,    E.  2G  Southern  Ey.  Co.  v.  State,  125 
E.  Co.,  116  Fed.  867.                              Ga.  287. 

25  Mason   v.    111.    Cent.    Ey.    Co., 
77  S.  W.  375. 


696  PUBLIC  HEALTH  ADMINISTRATION 

Eecently  it  has  become  popular  for  the  legislative  bod- 
ies to  enact  statutes  abolishing  the  common  drinking 
cup,  but  such  abolition  does  not  necessarily  repeal  a 
provision  that  the  company  must  provide  cups  or 
glasses.  The  train  may  carry  supplies  of  individual 
cups,  or  the  road  may  keep  a  man  in  charge  who  shall 
cleanse  the  cup  each  time  that  it  is  used.  The  company 
may  still  be  compelled  to  furnish  drinking  cups.27  It 
must  be  remembered,  however,  that  state  regulations 
on  interstate  trains  are  only  valid  in  so  far  as  they  do 
not  conflict  with  legal  requirements  of  the  federal  gov- 
ernment. 

Ordinarily  but  one  system  of  water  is  provided  for  a 
city,  and  that  is  used  for  all  purposes.  Sometimes  a 
separate  system,  in  whole  or  in  part,  is  provided  for 
fire  protection  and  mechanical  purposes.  The  double 
system  is  always  a  sanitary  danger,  for  connecting 
pipes  are  more  or  less  common  even  in  spite  of  munici- 
pal supervision.  With  such  exceptions  sanitarians 
have  no  concern  with  the  second  system. 

Sewage 

§  440.  Municipal  sewage  problem.  The  contractural, 
rather  than  the  governmental  relationship  of  the  city 
to  the  sewage  problems  may  not  be  immediately 
apparent  to  the  modern  cliff  dweller,  born  and  raised  in 
a  city  apartment  building.  Originally,  however,  the 
city  was  moved  to  assume  the  sewage  control  as  the 
agent  of  its  individual  citizens.  The  village  house  dis- 
charged its  sink  and  laundry  waste  into  a  cesspool  so 

27  Del.  Lackawanna  &  W.  Ey. 
Co.  v.  Pub.  Util.  Commrs.,  83  N.  J. 
L.  215. 


WATER  SUPPLY — DRAINAGE GARBAGE  697 

constructed  that  the  water  might  pass  into  the  soil, 
and  the  organic  materials  would  be  decomposed  by 
nature  into  harmless  gas  and  water.  There  was,  how- 
ever, a  certain  residuum  of  sludge  which  necessitated 
occasional  removal.  Sometimes  the  owner  buried  this 
sludge  upon  his  own  premises;  sometimes  he  had  it 
transported  to  some  other  place  where  it  could  not  be 
a  nuisance.  The  same  was  true  relative  to  the  contents 
of  the  privy  vault.  Because  the  cleaning  of  vaults  and 
cesspools  was  frequently  performed  by  those  who  were 
careless  of  the  rights  of  others,  and  the  contents  were 
emptied  where  they  might  endanger  the  public  health, 
supervision  of  the  business  by  the  city  was  frequently 
necessary  under  police  power.  This  supervision  was 
sometimes  exercised  by  means  of  license  demanded  of 
all  who  were  engaged  in  the  scavenger  business.  With 
increasing  density  of  the  population  privy  vaults 
especially  became  a  menace.  A  single  vault  contain- 
ing the  typhoid  bacilli  may  contaminate  every  house 
within  two  blocks  in  every  direction  through  the 
agency  of  flies  as  carriers.  Though  this  fact  was  not 
appreciated  formerly  as  fully  as  at  present,  still  privy 
vaults  were  long  recognized  as  nuisances.  The  vault 
is  not  a  necessity,  and  no  person  has  a  right  to  endan- 
ger others  by  maintaining  a  nuisance.  A  law  directing 
the  summary  destruction  of  a  privy  vault,  even  pend- 
ing appeal,  is  constitutional.28  It  is  necessary  for  the 
citizen  to  dispose  in  some  manner  of  his  dejecta  and 
of  the  sink  and  laundry  waste.  Very  naturally  he  is 
moved  to  make  use  of  natural  provisions  for  drainage; 
but  the  nearest  stream  may  be  some  distance  away. 

28  Harrington  v.   Providence,  20 
K.  I.  223. 


698  PUBLIC    HEALTH   ADMINISTRATION 

The  rational  result  is  that  the  municipality  constructs 
sewers  to  take  all  sewage  at  the  private  lot  line  and 
transport  it  underground  instead  of  by  wagon,  to  a 
point  where  it  may  safely  be  emptied.  In  so  doing  the 
municipal  corporation29  is  but  acting  as  the  agent  of 
the  citizens  collectively,  and  the  power  is  granted  for 
the  special  benefit  of  the  municipality.30 

Because,  therefore,  the  municipality  in  this  matter 
acts  in  its  corporate  capacity,  it  is  liable  for  any  injury 
resulting  from  malfeasance  pertaining  to  the  construc- 
tion or  operation  of  the  system.  Unless  the  duty  of 
providing  sewers  is  enjoined  by  the  state,  use  of  its 
power  to  construct  such  a  system  is  discretionary;31 
therefore  the  city  cannot  be  held  liable  for  a  failure  to 
construct,  nor  for  a  mistake  by  which  an  incompetent 
system  is  provided.32 

For  various  reasons  it  is  not  always  practicable  to 
have  sewers  constructed,  and  to  a  degree  the  use  of 
the  privy  and  the  cesspool  must  continue.  Because 
nightsoil  has  value  as  a  fertilizer  it  has  been  used  par- 
ticularly in  market  gardening.  Sewage  farms  have 
been  found  sometimes  to  be  a  source  for  municipal 
income.  However,  it  has  been  demonstrated  that  let- 
tuce, grown  upon  soil  infected  with  the  typhoid  bacil- 
lus, may  carry  the  germ.  It  has  therefore  seemed  best 
to  prevent  such  use  of  nightsoil.    But,  the  denuncia- 

29  Detroit  v.  Corey,  9  Mich.  165.  mour,  79  Ind.  491 ;  Montgomery  v. 

soDonahoe  v.  Kansas  City,  136  Gilmer,    33    Ala.    116;    Jordan    v. 

Mo.  657;  Ostrander  v.  Lansing,  111  Benwood,   42   W.   Va.   312;    Perry 

Mich.  693.  v.  Worcester,  6  Gray  (Mass.),  544; 

3i  Carr  v.  Northern  Liberties,  35  Diamond  Match  Co.  v.  New  Haven, 

Pa.  324.  55  Conn.  510;  Power  to  obtain  ex- 

32  Mills  v.   Brooklyn,  32   N.   Y.  tra     territorial     outlet,     Maywood 

489;     Henderson    v.     Minneapolis,  Co.   v.   Maywood,   140   111.   216. 
32    Minn.    319;    Cummins    v.    Sey- 


WATER  SUPPLY DRAINAGE GARBAGE  699 

tion  by  statute  of  certain  uses  of  the  contents  of  cess- 
pools does  not  inhibit  municipalities  from  adopting 
cesspools  as  a  part  of  its  system  of  sanitation.  Such  an 
ordinance  is  neither  oppressive  nor  unreasonable.  The 
provision  in  the  state  constitution  giving  to  the  state 
board  of  health  supervision  over  public  health  has  no 
application  when  the  board  fails  to  act.33  On  the  other 
hand,  when  cesspools  and  privies  are  permitted  they 
are  reasonable  subjects  for  municipal  regulation. 
Therefore,  an  ordinance  or  regulation  of  a  city  board 
of  health  prohibiting  the  maintenance  of  a  privy  vault 
within  twenty-five  feet  of  any  door  or  window  of  any 
residence  is  reasonable.34  It  would  seem,  in  the  light 
of  present  information  that  it  is  quite  as  necessary  that 
it  be  required  that  all  privies  be  screened,  so  that  flies 
shall  be  excluded.  The  power  to  designate  a  place  for 
the  deposit  of  nightsoil  is  a  necessary  incident  to  the 
power  of  boards  of  health  over  cesspools,  and  removal 
of  their  contents.35  An  act  requiring  that  every  build- 
ing used  as  a  residence,  or  in  which  persons  are  em- 
ployed, if  situated  upon  a  street  in  which  there  is  a 
public  sewer  "to  have  sufficient  water  closets  con- 
nected with  the  sewer,"  is  within  the  constitutional 
power  of  the  legislature,  as  the  guardian  of  the  police 
power  of  the  state.36 

As  a  municipality  increases  in  size  and  its  popula- 
tion becomes  more  dense,  the  power  to  construct  sew- 
ers gradually  assumes  a  governmental  aspect,  and  the 
use  of  the  authority  which  was  discretionary  becomes 
a  duty.    Such  construction  becomes  increasingly  neces- 

33  Logan  v.  Childs,  41   S.   197.  35  Courter  v.  Newark,  25  Vr.  325. 

34  Cartwright  v.  Board  of  36  Commonwealth  v.  Eoberts,  29 
Health,    Cohoes,    165    N.    Y.    631;       N.  E.  522. 

affirmed,  59  N.   E.   1120. 


700  PUBLIC   HEALTH    ADMINISTRATION 

sary  in  the  protection  of  the  public  health.37  Es- 
pecially with  this  view  of  the  case  the  legislature  has 
the  authority  to  impose  upon  municipalities  the  man- 
datory duty  of  constructing  sewers.38 

It  is  customary  to  assess  the  cost  of  special  im- 
provements upon  property  which  is  thereby  benefited. 
Since  vacant  property  can  generally  not  make  im- 
mediate use  of  sewers  it  has  been  contended  that 
vacant  property  cannot  be  assessed  to  pay  for  sewer 
construction.  Such  a  contention  is  unfortunate,  so  long 
as  the  improvement  be  recognized  as  one  to  be  thus 
paid  for  by  special  assessment,  for  it  might  prevent 
giving  needed  relief  to  isolated  citizens.  Property 
now  vacant  may  in  the  future  need  sewers.  The  very 
presence  of  the  sewer  increases  the  value  of  the  lot 
and  makes  it  more  available  for  use.  The  lot  below 
grade  may  be  filled  up  and  so  receive  benefit  from  the 
sewer.  Vacant  property  should  therefore  be  assessed 
for  sewer  construction.39 

§  441.  Sewer  a  nuisance.  The  sewer  itself  may  be- 
come a  nuisance.40  Whether  the  sewer  be  private,  as 
constructed  by  an  individual  owner,  or  public  and  un- 
der municipal  control,  there  should  be  no  nuisance. 
(§375.)  The  fact,  therefore,  that  a  town  board  of 
health  ordered  a  keeper  of  a  hotel  to  discharge  the 
sewage  from  his  hotel  into  a  watercourse  was  no  de- 
fense to  a  suit  brought  by  a  riparian  owner  to  enjoin 
such  use.41  No  prescription  of  usage  can  justify  the 
pollution  of  a  stream  by  the  discharge    of    sewage 

3r  Cockrane  v.  Maiden,  152  Mass.  ™  Downer    v.    Boston,    7    Cush. 

365;   Noble  v.   St.  Albans,- 56  Vt.  277;   Writ  v.  Boston,  9  Cush.  233. 

522;     Springfield    v.     Spence,     39  *°  McGregor  v.  Boyle,  34  Iowa, 

Ohio,    665;    Weis  v.    Madison,    75  268. 

Ind.  241.  41  Mann   v.    Willey,    168    N.    Y. 

38  Dillon,  Munic.  Corp.  73.  664. 


WATER  SUPPLY — DRAINAGE GARBAGE  701 

therein  in  such  a  manner  as  to  be  injurious  to  the  pub- 
lic health.  A  board  of  health  has  power  to  declare  to 
be  a  nuisance  and  to  abate  whatever  is  per  se  a 
nuisance  at  common  law.42  The  fact  that  a  stream  has 
been  used  as  a  sewer  may  give  a  certain  degree  of  pre- 
sumptive right  for  such  use,  but  it  gives  no  greater 
right  than  past  usage.  That  is  to  say,  the  fact 
that  a  stream  has  been  used  for  the  discharge  of 
sewage  in  a  certain  quantity  does  not  give  to  the  city  a 
right  to  discharge  more  than  that  quantity.  Further, 
if  the  natural  flow  of  water  in  the  stream  be  decreased, 
as  by  diversion  above,  or  by  less  rainfall,  the  same 
amount  of  sewage  discharge  would  increase  the  pollu- 
tion relatively.  Either  an  increase  in  the  total  amount 
of  sewage  discharged  or  a  decrease  in  the  amount  of 
water  naturally  in  the  stream  might  produce  a  nuis- 
ance where  previously  there  was  no  nuisance.  It  is 
quite  within  belief  that  a  changed  use  of  the  banks  of 
the  stream  below  might  also  change  the  aspect  of  such 
use  of  the  natural  watercourse  from  one  of  innocence 
to  danger.  It  must  always  be  borne  in  mind  that  a 
nuisance,  especially  a  nuisance  as  against  public 
health,  is  something  which  should  not  be  tolerated. 

The  estimation  as  to  whether  discharge  of  sewage 
into  a  stream  or  other  body  of  water  is  a  nuisance,  is 
not  be  to  gauged  solely  by  the  amount  of  sewage  pro- 
duced in  the  city.  Under  modern  methods  the  sewage 
may  be  so  treated  as  to  really  be  a  benefit  to  the  stream 
rather  than  a  detriment.  The  old  septic  tank  has  not 
proven  itself  reliable  in  action,  but  the  tank  devised  by 
Doctor  Karl  Imhoff  of  the  Emschergenoschenschaft 

42  Commonwealth  v.  Yost,  11  Pa. 
Super.  Ct.  323. 


702  PUBLIC    HEALTH   ADMINISTRATION 

takes  the  crude  sewage  and  pours  out  water  much 
clearer  than  that  found  in  many  streams,  and  prac- 
tically devoid  of  harmful  bacteria.  Sewage  has  also 
been  treated  by  Alteration,  by  electric  currents,  and  by 
chemical  reagents  so  that  it  may  be  harmless.  In  an 
English  suit  to  enjoin  the  use  of  the  stream  by  a 
sewage  district,  the  high  court  appointed  no  less  a 
man  than  Sir  "William  Ramsay  to  make  the  investiga- 
tion, and  he  found  that  the  water  of  the  stream  was 
actually  purer  below  than  above  the  point  of  entrance 
for  the  sewer.43  To  enjoin  the  city,  therefore,  against 
committing  a  nuisance  by  discharge  of  sewage  into 
natural  bodies  of  water  works  no  permanent  hardship 
upon  the  city.  On  the  other  hand,  simply  because  in 
times  past  a  little  village  saw  fit  to  empty  its  sewage 
into  a  neighboring  stream  is  no  excuse  for  the  populous 
city,  in  getting  rid  of  its  sewage,  to  dump  its  filth  upon 
its  neighbors. 

This  whole  subject  was  well  discussed  in  a  case 
brought  by  the  attorney-general  of  Michigan  against 
the  city  of  Grand  Rapids.44  This  was  a  proceeding  to 
declare  and  to  abate  and  restrain  the  continuance  of 
an  alleged  public  nuisance  which  was  claimed  to  result 
from  acts  of  the  city  in  conveying  through  artificial 
means  its  sewage  into  the  Grand  River,  which  flowed 
down  the  river  and  was  cast  on  the  lands  below  that 
city,  and  particularly  on  those  lands  which  are 
adjacent  to  and  within  the  Village  of  Grandville.  In 
the  court's  opinion  the  equities  of  the  case  were  with 
the  complainants,  and  the  testimony  made  out  a  case  of 
public  nuisance.    "If  the  city  in  emptying  its  sewage 

43Atty.     Gen.    v.    Birmingham,      Grand  Rapids  (Mich.),  141  N.  W. 
etc.,  L.  E.  C.  D.,  1910,  Vol.  I,  48.       E.  890. 
44  Attorney-General    v.    City    of 


WATER   SUPPLY — DRAINAGE — GARBAGE  703 

into  Grand  River,  as  shown  by  the  evidence,  created  a 
nuisance  to  the  public  or  riparian  properties  below  the 
city,  the  continuance  or  creation  of  that  nuisance 
might  properly  be  restrained  by  injunction,  and  the 
attorney-general  was  a  proper  complainant.  Undoubt- 
edly the  city  has  the  right  to  make  a  reasonable  use 
of  the  waters  of  the  river  as  a  riparian  owner.  But 
the  court  fa  attention  has  not  been  called  to  any  statute 
giving  the  city  the  right  to  use  Grand  River  below  its 
limits  as  a  sewer  for  the  purpose  of  carrying  away  its 
waste  and  refuse  in  an  unreasonable  manner;  and,  if 
it  were  attempted  by  statute  to  give  such  a  right,  the 
statute  would  be  unconstitutional,  unless  it  first  pro- 
vided that  the  owners  of  property  along  the  river 
should  be  compensated  for  damages  to  be  first  deter- 
mined by  constitutional  methods  for  destruction  of 
such  property  rights.  If  the  city  creates,  or  threatens 
to  create,  a  public  nuisance,  particularly  outside  of  its 
corporate  limits,  it  is  subject  to  the  same  rules  as  would 
be  a  private  individual,  particularly  when  in  the  creat- 
ing of  such  nuisance  it  acts  not  in  a  governmental  but 
in  a  private  capacity.  There  can  be  no  prescriptive 
right,  that  is  from  long  usage,  to  pollute  a  stream  by 
the  discharge  of  sewage  in  such  a  manner  and  to  such 
an  extent  as  to  be  injurious  to  the  public  health.  Even 
assuming  that  a  prescriptive  right  to  foul  a  stream 
with  sewage  can  be  acquired,  such  must  be  restricted  to 
the  limits  of  it  when  the  period  of  prescription  com- 
menced ;  and  if  the  pollution  be  substantially  increased, 
whether  gradually  or  suddenly,  the  court  will  inter- 
fere by  injunction  to  prevent  the  wrongful  excess;  and, 
if  it  be  impossible  to  separate  the  illegal  excess  from 
the  legal  user,  the  wrong-doer  must  bear  the  conse- 


704  PUBLIC   HEALTH  ADMINISTRATION 

quences  of  any  restrictions  necessary  to  prevent  the 
excess,  even  if  it  unavoidably  extends  to  the  total 
prohibition  of  the  user.  No  person  is  entitled  on  the 
ground  of  ancient  custom  to  the  privilege  to  collect  a 
mass  of  sewage  matter  and  pour  it  at  one  point  into 
a  stream  in  such  a  quantity  that  the  river  cannot  dilute 
it  on  its  passage  down  to  the  lower  riparian  proprie- 
tors, as  the  effect  of  such  an  act  is  to  create  an  evil 
which  must  be  illegal,  being  such  as  no  custom  can 
authorize.  The  general  rule  is  that  sewage  cannot  be 
cast  into  the  stream  to  such  an  extent  as  to  pollute  it. 
Sewage  cannot  be  thrown  into  the  stream  in  such  a  way 
as  to  render  the  water  foul  and  unfit  for  use.  "Where- 
fore, the  decree  of  the  court  below  in  favor  of  the  de- 
fendants is  reversed,  and  one  entered  for  the  com- 
plainants restraining  the  city,  its  boards,  officials,  serv- 
ants, and  agents  from  continuing  to  discharge  the 
sewage  of  the  city  into  Grand  Eiver,  until  the  same 
shall  have  first  been,  by  the  use  of  a  septic  tank  or 
tanks,  so  deodorized  and  purified  as  not  to  contain  the 
foul,  offensive,  or  noxious  matter  (which  it  now  con- 
tains) capable  of  injuring  the  complainants  or  their 
property,  or  causing  a  nuisance  thereto;  such  injunc- 
tion to  become  operative  one  year  after  the  date  of  the 
settling  of  decree.  The  complainants  will  also  recover 
of  the  defendant  city  their  costs  of  both  courts." 

Evidence  that  there  were  numerous  cases  of  typhoid 
fever  in  a  certain  building,  and  that  the  sewage  from 
that  building  was  conducted  by  the  defendant  to  cer- 
tain filter  beds,  and  that  the  sewage  after  filtering  ran 
into  the  plaintiff's  stream,  was  admissible  in  connec- 
tion with  evidence  that  the  said  plaintiff's  stream 
continued  to  be  contaminated  by  the  sewage  after  the 


WATER  SUPPLY — DRAINAGE GARBAGE  705 

use  of  the  filter  beds,  as  tending  to  show  a  diminished 
value  in  the  use  of  the  stream,  even  without  further 
proof  that  the  germs  of  the  said  disease  actually 
reached  said  stream,  and  although  it  appeared  that  the 
water  of  the  said  stream  was  not  then  used  for  drink- 
ing purposes.  Under  such  circumstances  the  plaintiff 
could  neither  be  expected  himself  to  use  such  stream 
for  drinking  purposes  for  his  own  cattle,  nor  to  be  able 
to  procure  others  to  so  use  it.45 

The  Collingswood  Sewerage  Co.  was  incorporated 
under  the  New  Jersey  Act  of  1898,  to  collect,  treat,  and 
dispose  of  sewage.  The  State  Board  of  Health  is 
vested  with  the  powers  and  duties  of  a  state  sewage 
commission.  The  plans  for  the  Collingswood  Sewer- 
age Co.  were  submitted  to  the  State  Board  of  Health 
and  approved  by  the  engineer  of  the  board.  Neverthe- 
less, when  the  plant  was  put  in  operation  it  was  dis- 
covered that  it  generated  unpleasant  and  offensive 
odors,  to  the  injury  and  discomfort  of  the  community, 
and  action  was  brought  against  the  corporation.  The 
defense  of  the  corporation  was  that  its  plans  had  been 
approved  by  the  engineer  of  the  state  board,  and  that 
owing  to  the  cost  of  the  plant  it  was  not  a  profitable 
concern,  as  it  did  not  meet  its  fixed  charges.  Upon 
conviction  the  corporation  appealed.  The  court  said 
that  the  state  did  not,  with  the  permit  to  treat  sewage, 
grant  to  the  corporation  the  license  to  commit  a  nui- 
sance. Nor  did  the  fact  that  the  plans  had  been  ap- 
proved absolve  it  from  maintaining  a  nuisance.  When 
put  in  operation  the  fact  was  demonstrated  by  the 
odors  produced  that  there  was  some  defect  in  the  plans. 
No  matter  how  much  the  plant  might  have  cost,  or  how 

*~>  Gorham  v.  New  Haven,  66  At. 
505. 


706  PUBLIC    HEALTH   ADMINISTRATION 

unprofitable  its  operation  might  be,  neither  element 
was  sufficient  to  absolve  the  company  from  maintain- 
ing a  nuisance  due  to  faulty  construction  of  the  plant, 
or  by  its  negligent  operation.46 

§  442.  Jurisdiction.  Because  a  local  board  of  health 
has  jurisdiction  only  over  a  limited  territory,  the  or- 
ders of  a  single  board  may  not  be  sufficient  to  preserve 
the  purity  of  a  source  of  water  supply.  Thus,  a  nui- 
sance maintained  on  land  in  two  adjacent  townships  is 
equally  within  the  jurisdiction  of  each  township,  and 
the  orders  of  one  town  board  would  not  extend  into  the 
territory  of  the  other  township.  Although  the  state 
statutes  conferred  upon  the  state  board  of  health  super- 
vision over  streams,  ponds,  etc.,  used  for  water  supply, 
a  town  board  still  may  abate  a  nuisance  in  the  pollu- 
tion of  a  water  supply.47  Generally  speaking  it  must 
devolve  upon  the  state  authorities  to  protect  one  com- 
munity from  the  nuisance  of  another 's  sewage.  Thus, 
the  supreme  court  of  Montana  upheld  the  State  Board 
of  Health  in  prohibiting  a  city  from  discharging  its 
sewage  into  a  river.48 

Just  as  the  state  must  stand  guard  between  different 
municipalities,  so  it  seems  that  it  would  be  desirable 
if  authority  could  be  found  to  enable  the  national  gov- 
ernment to  protect  one  state  from  a  similar  injury  by 
another.  (§§  243,  244.)  The  only  real  protection  pos- 
sible at  present  is  a  suit  before  the  federal  courts 
brought  by  one  state  against  another.  The  condition 
is  at  best  anomalous.  It  would  be  essentially  a  suit  for 
damages  and  enforcement  of  judgment  might  be  diffi- 
cult.   In  the  case  of  Kentucky  v.  Dennison 49  applica- 

46  State  v.  Collingswood  Sewer-  48  Miles  City  v.  State  Board  of 
age  Co.,  89  Atl.  525.                              Health    (Mont.),   102    Pae.   696. 

47  Stone  v.  Heath,  179  Mass.  385.  49  24  How.  66. 


WATER  SUPPLY — DRAINAGE — GARBAGE  707 

tion  was  made  for  a  writ  of  mandamus  to  compel  the 
governor  of  Ohio  to  surrender  a  fugitive  from  justice. 
The  court  held  that  while  the  case  was  a  controversy 
between  two  states,  it  had  no  jurisdiction  to  grant 
the  writ;  that  Congress  could  not  coerce  a  state  officer 
as  such  to  perform  any  duty,  nor  could  that  duty  be 
enforced  by  a  United  States  court.  In  Missouri  v.  Illi- 
nois and  The  Sanitary  District  of  Chicago  50  the  court 
affirmed  its  jurisdiction  of  a  suit  in  equity  by  the 
state  of  Missouri  to  restrain  the  defendants  from  re- 
ceiving or  permitting  to  be  received  and  eventually 
discharged  into  the  Mississippi  the  sewage  of  Chicago, 
which  had  previously  been  discharged  into  Lake  Michi- 
gan. The  court  said  in  its  decision:  "An  inspection 
of  the  bill  discloses  that  the  nature  of  the  injury  com- 
plained of  is  such  that  an  adequate  remedy  can  only  be 
found  in  this  court  at  the  suit  of  the  state  of  Missouri. 
It  is  true  that  no  question  of  boundary  is  involved,  nor 
of  direct  property  rights  belonging  to  the  complainant 
state.  But  it  must  surely  be  conceded  that,  if  the  health 
and  comfort  of  the  inhabitants  of  a  state  are  threat- 
ened, the  state  is  the  proper  party  to  represent  and 
defend  them.  If  Missouri  were  an  independent  and 
sovereign  state,  all  must  admit  that  she  could  seek  a 
remedy  by  negotiation,  and,  that  failing,  by  force. 
Diplomatic  powers  and  the  right  to  make  war  having 
been  surrendered  to  the  general  government,  it  was  to 
be  expected  that  upon  the  latter  would  be  devolved  the 
duty  of  providing  a  remedy  and  that  remedy,  we  think, 
is  found  in  the  constitutional  provisions  we  are  consid- 
ering." Earlier  in  this  same  opinion,  Mr.  Justice 
Holmes  said:    "The  Constitution  extends  the  judicial 

so  180  IT.   S.  208. 


708  PUBLIC    HEALTH   ADMINISTRATION 

power  of  the  United  States  to  controversies  between 
two  or  more  states,  and  between  a  state  and  citizens  of 
another  state,  and  gives  this  court  original  jurisdic- 
tion in  cases  in  which  a  state  shall  be  a  party.  There- 
fore, if  one  state  raises  a  controversy  with  another, 
this  court  must  determine  whether  there  is  any  prin- 
ciple of  law  and,  if  any,  what,  on  which  the  plaintiff 
can  recover.  But  the  fact  that  this  court  must  decide 
does  not  mean,  of  course,  that  it  takes  the  place  of  a 
legislature.  Some  principles  it  must  have  power  to 
declare.  For  instance,  when  a  dispute  arises  about 
boundaries,  this  court  must  determine  the  line,  and  in 
doing  so  must  be  governed  by  rules  explicitly  or  im- 
plicitly recognized.51  It  must  follow  and  apply  those 
rules,  even  if  legislation  of  one  or  both  of  the  states 
seems  to  stand  in  the  way.  But  the  words  of  the  Con- 
stitution would  be  a  narrow  ground  upon  which  to 
contract  and  apply  to  the  relations  between  states  the 
same  system  of  municipal  law  in  all  its  details  which 
would  be  applied  between  individuals.  If  we  suppose  a 
case  which  did  not  fall  within  the  power  of  Congress 
to  regulate,  the  result  of  a  declaration  of  rights  by  this 
court  would  be  the  establishment  of  a  rule  which  would 
be  irrevocable  by  any  power  except  that  of  this  court 
to  reverse  its  own  decision,  an  amendment  of  the 
Constitution,  or  possibly  an  agreement  between  the 
states  sanctioned  by  the  legislature  of  the  United 
States."  Practically  it  amounts  to  this,  that  in  a  mat- 
ter in  which  Congress  has  authority  to  act  the  courts 
could  enforce  action  between  states;  but  where  Con- 
gress has  not  authority,  the  influence  of  the  federal 

si  Rhode    Island    v.    Massachu- 
setts, 12  Pet.  657,  737. 


WATER  SUPPLY — DRAINAGE GARBAGE  709 

government  must  be  chiefly  by  moral  suasion.  As  has 
been  previously  stated,  matters  pertaining  purely  to 
sanitation  come  under  the  heading  of  police  power, 
and  are  thus  within  the  jurisdiction  of  the  individual 
states  rather  than  of  Congress.  If  the  discharge  of 
sewage  decrease  the  depth  of  water  and  thus  interfere 
with  navigation,  Congress  has  authority  to  act,  and  the 
federal  courts  would  therefore  have  jurisdiction. 

There  is  another  class  of  cases  in  which  the  federal 
government  may  be  interested,  viz.  those  in  which  a 
portion  of  the  waters  of  a  river  may  be  diverted.  Thus, 
in  Kansas  v.  Colorado 52  suit  was  brought  to  enjoin 
the  diversion  by  the  state  of  Colorado  of  a  dispropor- 
tionate share  of  the  waters  of  the  Arkansas  River  be- 
fore it  reached  the  Kansas  line.  Particularly  when 
this  diversion  to  any  degree  lessens  the  navigability 
of  either  the  stream  diverted  or  one  into  which  it  flows, 
Congress  clearly  has  authority  to  act  under  the  com- 
merce clause  of  the  Constitution.  Such  diversion  may 
be  the  means  on  the  one  hand  of  lessening  the  sewage 
problem,  and  on  the  other,  by  decreasing  the  water  of 
the  river,  of  intensifying  the  difficulties  of  the  situa- 
tion. 

§  443.  Relation  of  problems  to  natural  drainage.  At 
common  law  there  can  be  no  liability  for  natural  con- 
ditions, but  when  there  is  added  to  those  natural  con- 
ditions some  human  element,  the  agency  making  the 
change  may  assume  a  liability.  A  natural  pond  is  not 
at  common  law  a  nuisance,  but  if  a  man  deposit  decay- 
ing animal  and  vegetable  matter  upon  its  banks  so 
that  the  composition  of  the  water  becomes  offensive, 
a  nuisance  may  be  created  for  which  he  will  be  respons- 

62  185  U.  S.  125;  206  U.  S.  46. 


710  PUBLIC   HEALTH   ADMINISTRATION 

ible  and  liable.  Now  the  bank  of  that  pond  practically 
extends  as  far  as  drainage  towards  the  pond  exists. 
So,  if  the  sewage  from  a  neighboring  house  is  per- 
mitted to  flow  into  the  pond,  either  directly  or  in- 
directly, or  if  the  drainage  from  the  barn-yard  goes 
that  way,  the  man  is  liable  for  the  nuisance  created.  A 
running  stream,  especially  when  it  aerates  the  water 
by  successive  falls,  has  power  to  decidedly  reduce  the 
harmfulness  of  sewage  content.  When,  however,  that 
stream  has  been  dammed,  the  flow  of  water  is  de- 
creased and  solid  portions  of  sewage  become  deposited 
on  the  bottom.  In  this  way,  without  in  any  way  chang- 
ing the  amount  of  sewage  content,  the  stream  may  be 
changed  from  one  of  harmlessness  to  one  of  danger. 
Problems  relative  to  water  supply  and  to  sewage  dis- 
posal are  thus  frequently  intimately  associated  with 
those  of  drainage.  Ordinarily,  drainage  is  a  portion 
of  the  jurisdiction  assigned  in  municipalities  to  depart- 
ments of  public  works.  Sewage  disposal,  therefore, 
comes  under  the  same  heading,  and  the  care  of  water 
works  is  also  assigned  to  a  similar  department.  The 
influence  of  a  health  department  in  the  control  of  these 
matters  must  therefore  frequently  be  indirect,  and  by 
moral  suasion. 

Garbage 

§  450.  Garbage  as  a  municipal  problem.  Garbage  is 
not  necessarily  a  nuisance.  In  fact,  it  frequently  has 
a  money  value.  (§§  171,  200.)  It  may  be  used  for  the 
nourishment  of  poultry,  hogs,  or  other  animals.  After 
desiccation  it  may  be  used  as  fuel;  sometimes  it  is  de- 
cayed and  used  as  fertilizer.  On  the  other  hand,  on 
the  crowded  city  lot  accumulations  of  garbage  serve 


WATER  SUPPLY — DRAINAGE — GARBAGE         711 

as  food  for  rats  and  flies  and  so  help  to  increase  the 
number  of  these  nuisances.  The  decaying  garbage 
becomes  offensive  and  sickening  to  sensitive  nostrils. 
Ground  soaked  with  the  water  from  such  filth  becomes 
a  breeding  place  for  flies.  There  can  be  no  use  of  such 
materials  within  the  city  to  any  extent.  Chickens  and 
hogs  may  not  be  kept  on  the  crowded  city  lot.  The 
garbage  must  therefore  be  transported  to  some  other 
place  where  it  may  be  used  or  destroyed.  If  it  be  trans- 
ported in  an  open  wagon  not  specially  constructed  for 
that  purpose,  the  streets  become  littered  and  the 
effluvia  from  the  decaying  mass  is  very  offensive.  In 
the  summer  time  the  wagon  is  accompanied  by  hosts  of 
flies.  Garbage,  therefore,  is  a  nuisance  in  posse,  and 
as  such  it  must  be  dealt  with.  If  it  be  left  to  the  in- 
dividual property  owner  to  make  such  disposal  of  the 
material  as  he  sees  fit,  the  results  will  be  very  unsat- 
isfactory for  the  community.  Too  few  citizens  have 
enough  of  public  spirit  to  do  their  civic  duty  except 
by  compulsion.  It  therefore  becomes  a  duty  of  a 
municipality  to  use  its  police  power  in  the  regulation 
of  the  care  of  garbage.  This  must  be  done  first  by 
ordinances  regulating  the  collection  and  storage  of 
such  substances  until  they  shall  be  removed.  A  still 
more  important  regulation  must  be  that  which  governs 
the  work  of  scavengers  who  go  about  the  city  gather- 
ing the  stored  materials  and  transporting  them  to 
some  point  without  the  city,  where  they  may  be 
destroyed  without  causing  offense.  When  these  scav- 
engers are  permitted  to  work  without  restriction  their 
services  are  always  unsatisfactory:  they  take  what 
they  want  and  throw  the  rest  upon  the  ground,  thus 
really  increasing  rather  than  decreasing  the  garbage 
problem. 


712  PUBLIC   HEALTH   ADMINISTRATION 

A  case  was  recently  decided  by  the  appellate  court 
of  Indiana,  showing  a  direct  relationship  between  the 
subjects  of  garbage  and  water  supply,  and  also  showing 
that  in  considering  the  banks  of  a  pond  or  stream 
we  must  not  be  limited  by  the  immediate  proximity  to 
the  water  line.  It  is  true  that  the  case  does  not  show 
that  the  water  in  question  was  used  for  a  city  supply, 
but  it  was  used  for  a  fish  pond,  and  the  pond  was  sup- 
plied by  water  from  a  flowing  stream  which  had  been 
dammed  for  the  purpose  of  creating  a  pond.  The  city 
of  Newcastle  leased  land  on  the  side  of  a  hill  to  be 
used  for  its  garbage  dump.  The  owners  of  the  pond 
brought  suit  against  the  city  on  the  ground  that  the 
garbage  injured  the  waters  of  the  pond.  The  court 
found  in  favor  of  the  owners  of  the  pond,  saying:  "As 
appellant  (the  city  of  Newcastle)  contends,  the  town 
of  Newcastle  was  charged  with  the  duty  of  preserving 
the  health  of  its  citizens,  and  was  within  the  bounds 
of  its  governmental  functions  when  it  provided  a 
suitable  place  in  which  to  deposit  its  garbage.  But 
while  it  has  such  authority,  it  may  not  deposit  garbage 
at  such  place  in  a  careless  and  negligent  manner,  caus- 
ing a  nuisance,  nor  may  it  negligently  permit  the 
garbage  and  offal  properly  deposited,  to  escape  upon 
the  lands  of  another  to  his  damage.  *  *  *  A 
municipal  corporation  has  no  more  right  to  maintain  a 
nuisance  than  an  individual  would  have,  and  for  nuis- 
ance maintained  upon  its  property,  the  same  liability 
attaches  against  a  city  as  to  an  individual. " 5S  The 
general  proposition  may  therefore  be  made,  that ,  a 
municipal   corporation   is   liable   for   casting   refuse, 

ss  City  of  Newcastle  v.  Harvey, 
102  N.  E.  878. 


WATER  SUPPLY DRAINAGE GARBAGE  713 

sewage,  or  filth  of  any  kind,  either  into  streams,  or 
upon  the  shores  of  streams.531 

Without  special  authorization  and  under  its  inherent 
police  power,  a  municipality  may  legislate  to  abate 
nuisances.  The  fact  that  garbage  is  not  a  nuisance 
per  se  prohibits  the  city  from  creating  any  monopoly 
in  the  same  except  in  case  of  extreme  necessity.  What 
is  said  relative  to  ordinary  garbage  is  also  true  rela- 
tive to  dead  animals.  The  carcass  of  a  dead  animal 
may  have  a  money  value  to  the  owner.  On  the  other 
hand,  if  left  in  place  it  may  become  a  nuisance.  It 
therefore  follows  that  opportunity  should  be  given  to 
the  owners  to  remove  garbage  or  dead  animals  and 
thus  obtain  for  themselves  such  value  as  they  may  be 
able.  Ownership  is  not  lost  with  the  death  of  the  ani- 
mal.54 Ordinances  have  been  declared  void  which 
donate  the  bodies  of  such  dead  animals  to  a  third 
party  as  being  a  violation  of  due  process  of  law,  and 
without  just  compensation.55  So  it  has  been  intimated 
that  an  exclusive  privilege  to  collect  and  convey  gar- 
bage cannot  be  made  to  apply  to  such  matter  as  the 
owner  may  desire  to  use  or  .sell,  and  which  is  innocuous 
and  capable  of  being  put  to  useful  purposes.56  A 
municipal  contract  giving  exclusive  rights  and  fran- 
chises by  a  city  other  than  in  the  exercise  of  police 

53a  Franklin  Wharf  v.  Portland,  Bros.  v.  Atlanta,  97  Ga.  697,  33  L. 
67  Me.  46;  Chapman  v.  Rochester,  R.   A.   804;    Knauer  v.   Louisville, 
110  N.  Y.  273;  Spokes  v.  Banbury  20  Ky.  L.  Rep.   193,  41  L.  R.  A. 
Board  of  Health,  L.  R.  1  Eq.  42;  219;    Campbell  v.  District  of  Co- 
Goldschmid  v.  Tunbridge  "Wells,  L.  lumbia,  19  App.  D.  C.  131. 
R.  1  Eq.  161 ;  Haskell  v.  New  Bed-  55  Town  of  Greensboro  v.  Ehren- 
f ord,  108  Mass.  208.  reich,  80  Ala.  579 ;  River  Render- 
s'! Underwood  v.  Green,  42  New  ing  Company  v.  Behr,  77  Mo.  91. 
York,  140;  River  Rendering  Com-  se  State  v.  Orr,  68  Conn.  101,  34 
pany  v.  Behr,  77  Mo.  91;  State  v.  L.  R.  A.  279. 
Morris,  47  La.  Ann.  1660;  Schoen 


714  PUBLIC   HEALTH   ADMINISTRATION 

power  is  void.57  But  a  contract  for  the  exclusive  right 
to  clear  and  dispose  of  the  garbage  of  a  city  is  not  neces- 
sarily an  illegal  monopoly.58  This  authority  of  the  city 
thus  to  make  a  special  contract  was  in  one  case  limited 
to  nuisances  per  se.59  While  ordinarily,  as  in  this  mat- 
ter of  garbage,  a  city  may  not  create  a  monopoly,60  an 
ordinance  can  not  be  held  as  unreasonable  and  void  if 
it  be  expressly  authorized  by  the  legislature.61  Though 
creating  a  monopoly  in  making  a  contract  for  the  col- 
lection of  garbage,  the  city  of  Indianapolis  was  ex- 
pressly authorized  so  to  do  in  its  charter.62  It  has 
been  held  that  regulations  relative  to  the  removal  of 
garbage  must  leave  a  way  open  to  every  person  who  is 
willing  to  comply  with  the  requirements  to  engage  in 
the  business.63  In  North  Carolina  an  ordinance  was 
declared  void  as  being  unreasonable  which  required  a 
license  from  anyone  attempting  to  do  scavenger  work, 
and  thus  prevented  owners  from  removing  refuse  from 
their  own  premises.64  An  ordinance  requiring  that 
garbage  shall  be  removed  in  water-tight  closed  carts 
or  wagons,  which  shall  be  marked  with  the  word  ' '  gar- 
bage," is  reasonable.65  While  the  Board  of  Health 
of  Philadelphia  has  discretionary  power  to  declare 
the  keeping  of  garbage,  offal,  and  refuse  matter  upon 
the  streets,  alleys,  and  the  premises  of  individuals,  a 

57  Long  v.  Duluth,  49  Minn.  280.  61  Coal  Float  Co.  v.  City  of  Jef- 

ss  Grand  Eapids  v.  DeVries,  123  ferson,  112  Ind.  15;  Cooley,  Cons. 

Mich.  570;  State  v.  Orr,  68  Conn.  Lim.  241. 

101;  Kerr  v.  Simmons,  82  Mo.  269;  62  Walker   v.  Jameson,   140   Ind. 

Smiley  v.  McDonald,  42  Neb.  5,  27  591. 

L.  E.  A.  540;  Schultz  v.  State,  76  «s  Matter  of  Lowe,  54  Kan.  759, 

Atl.  592;   Kochester  v.  Gutherlett,  27  L.  E.  A.  545. 

133  N.  Y.  Supp.  541.  G4  state  v.  Hill,  126  N.  C.  1139, 

ss  Her  v.  Ross,  90  N.  W.  E.  869.  50  L.  E.  A.  473. 

eo  Chicago  v.  Eumpff,  45  111.  90;  65  pe0ple  v.  Gordon  (Mich.),  45 

Landberg  v.  Chicago,  237  111.  117.  N.  W.  E.  658. 


WATER  SUPPLY DRAINAGE: — GARBAGE  715 

nuisance,  it  cannot  declare  the  act  of  a  private  con- 
tractor in  removing  the  garbage  to  be  a  nuisance,  when 
he  has  adopted  the  precise  manner  for  the  purpose 
prescribed  by  the  city  ordinance.66  In  other  words, 
the  nuisance  must  consist  in  a  given  fact  or  condition, 
and  that  condition  would  not  vary  because  of  any 
difference  in  the  persons  committing  the  act.  Laws 
must  be  just  and  equal  with  all  persons. 

As  a  practical  matter  of  administration  it  may  be 
necessary  to  restrict  the  collection  of  garbage  and 
other  refuse  absolutely  to  the  employees  of  the  city 
government.  On  the  contrary,  even  the  requirement 
of  a  license  in  smaller  towns  may  prove  an  obstacle 
to  securing  collection  by  private  scavengers.  It  is 
sometimes  said  that  such  a  requirement  would  abso- 
lutely stop  all  operations  by  private  scavengers  and 
throw  the  cost  of  collection  entirely  upon  the  city 
administration.  This  does  not  seem  a  reasonable  re- 
sult if  the  matter  be  handled  diplomatically.  Only  by 
the  license  system  can  the  collection  be  efficiently  regu- 
lated. 

§  451.  City  collection.  Many  cities  find  it  to  their 
advantage  to  assume  the  responsibility  of  the  collec- 
tion of  all  the  garbage  and  other  refuse.  Such  collec- 
tion by  the  city  may  to  some  degree  be  aided  by  pri- 
vate enterprise.  In  such  cases  private  collectors 
should  be  obliged  to  take  out  licenses  and  to  comply 
with  such  regulations  as  might  be  issued  by  the  proper 
department  in  a  municipal  government. 

§  452.  Ankylostomiasis  or  the  hook-worm  disease. 
A  subject  which  a  few  years  ago  was  not  thought  to  be 

66  Philadelphia  v.  Lyster,  3  Pa. 
Sup.  Ct.  475. 


716  PUBLIC    HEALTH   ADMINISTRATION 

of  special  concern  in  this  country  has  proven  of  great 
importance  to  the  industrial  portion  of  our  southern 
states.  All  through  the  south  there  were  individuals 
and  families  who  were  simply  considered  lazy,  though 
sometimes  they  were  thought  to  be  infected  with  either 
consumption  or  malaria.  They  were  able  to  work  only 
a  portion  of  the  time,  and  then  in  an  imperfect  way. 
Now  it  is  known  that  many  of  these  cases  are  simply 
the  result  of  infection  with  an  intestinal  parasite,  and 
the  condition  is  designated  either  ankylostomiasis  or 
hook-worm  disease.  When  the  hook-worm  is  eradi- 
cated from  the  person,  slothfulness  gives  way  to  ambi- 
tion, and  inactivity  to  energy.  Families  who  have 
never  been  known  to  pay  a  bill  become  prompt  finan- 
cially, and  even  forehanded.  This  disease  is  spread 
through  carelessness  in  the  disposal  of  the  evacuation 
from  human  bowels.  Governmental  investigations  show 
that  in  the  sections  of  the  country  where  the  disease  is 
specially  prevalent  sanitary  privies  are  practically 
unknown,  and  in  fact  most  families  have  absolutely 
no  privies.  The  discharge  being  thus  permitted  to 
mingle  with  the  soil,  eggs  or  larva  get  upon  the  vege- 
tables, into  water  supplies,  or  even  into  the  skin  of 
the  bare  feet.  Having  made  their  entrance  into  the 
human  body,  either  with  food  and  drink,  or  through 
the  skin,  the  worm  makes  its  progress  until  it  finds 
itself  located  preferably  in  the  upper  part  of  the 
small  intestine.  Here  it  anchors  itself  and  begins  to 
bleed  the  patient.  This  disease  demands  legislation 
and  energetic  administration.  Through  the  southern 
states  at  least  its  importance  is  so  great  that  extreme 
measures  might  be  upheld  as  reasonable.  Such  regu- 
lations, in  the  land  like  that  of  the  Dakotas,  would 


WATER  SUPPLY — DRAINAGE — GARBAGE  717 

be  deemed  unreasonable  because  of  the  drier  atmos- 
phere, soil  less  easily  infected,  and  a  population  more 
widely  scattered.  The  rigors  of  the  northern  climate 
necessitate  the  wearing  of  shoes  which  are  of  them- 
selves protective,  and  it  is  probable  that  the  cold  win- 
ters would  exert  a  decided  destructive  influence  upon 
the  worm  in  the  soil.  So  far  as  we  are  aware,  this 
disease  has  not  been  a  subject  for  special  litigation. 
This  disease  does,  however,  illustrate  how  important 
may  be  the  state  control  over  strictly  private  matters, 
as  in  the  care  of  the  farm  outhouse,  to  prevent  the 
spread  of  disease.  It  shows  how  night  soil  may  be  a 
great  danger  to  the  community  to  which  it  is  trans- 
ported, and  illustrates  the  necessity  that  health  exec- 
utives be  ever  wide  awake  for  the  discovery  of  new 
sources  of  infection. 


CHAPTER  XVII. 

PURE  FOOD  AND  DRUG  REGULATION. 

§  460.  Two  standards  of  purity.  §  466.  Regulation    of    milk    indus- 
§  461.  Standard    fixed    by    legisla-  try. 

tion.  §  467.  Composition  of  the  product. 

§  462.  Misbranding.  §  468.  Inspection. 

§  463.  Dealer  bound  to  know  qual-  §  469.  Confiscation. 

ity.  §  470.  Poisonous   Substances. 
§  464.  Serial   numbers. 
§  465.  Commercial  motive   in   food 

legislation. 

§  460.  Two  standards  of  purity.  There  are  two 
standards  for  the  purity  of  foods.  From  a  sanitary 
point  of  view  any  food  might  be  regarded  as  pure  un- 
less it  consist  of,  or  contain,  some  poisonous  substance, 
or  some  biologic  principle  capable  of  producing  a 
poison.  From  the  commercial  standpoint  an  article 
can  only  be  called  pure  when  it  conforms  to  a  definite 
standard  in  composition,  and  is  exactly  what  it  is 
claimed  to  be.  (§  234  et  seq.)  We  have  no  concern 
here  with  such  fine  legal  distinctions  in  the  interest 
of  commerce  as  those  which  prohibit  the  term 
" Mocha"  to  be  applied  to  coffee,  unless  it  be  shipped 
from  the  Arabian  city  of  that  name,  but  permits  the 
designation  " Irish"  to  be  used  for  potatoes  grown  in 
America.  From  a  sanitary  point  of  view  it  matters 
not  in  what  land  Maraschino  cherries  grow.  It  does 
interest  us  when  butter  or  milk  contain  harmful  germs, 
and  when  they  fall  below  a  normal  standard.  The 
nutritional  value  of  foods  may  thus  be  lowered  by 

718 


PURE   FOOD   AND    DRUG    REGULATION  719 

adulteration.  It  may  also  be  changed  by  the  process 
of  its  manufacture.  The  ordinary  gelatine  capsules 
are  freely  soluble  in  the  stomach,  but  after  having 
been  soaked  in  a  solution  of  formaldehyde  they  are 
insoluble  in  that  organ.  Such  a  treatment  of  the  cap- 
sules is  unusual,  and  not  to  be  expected;  and  a  person 
buying  such  capsules  would  probably  be  disappointed 
in  the  results.  This  illustrates  what  may  occur  to  a 
greater  or  less  degree  at  any  time.  Again,  for  many 
years  phenolphthalein  was  used  as  an  "indicator"  to 
prevent  substitution  in  a  certain  kind  of  wine.  It 
was  supposed  to  be  physiologically  inert.  Later  it 
was  discovered  that  this  substance  has  a  pronounced 
laxative  action  upon  the  system.  It  is  therefore  neces- 
sary from  a  sanitary,  as  well  as  commercial,  stand- 
point that  there  be  a  definitely  fixed  standard  of  char- 
acter and  composition  for  articles  of  food  and  drugs. 
In  the  administration  of  the  national  Pure  Food  and 
Drugs  Act  stress  must  be  laid  upon  the  commercial 
aspect,  but  even  from  a  commercial  point  of  view  sub- 
stances which  are  positively  harmful  must  be  excluded. 
Decomposed  oysters,  for  example,  are  not  proper 
articles  of  commerce :  they  have  no  real  food  value  and 
they  may  be  very  dangerous.  So  the  government  con- 
demns decomposed  cans  of  meat  or  grains  that  are 
full  of  worms.  The  federal  government  condemns 
these  articles  because  they  are  not  legitimate  articles 
for  traffic.  These  same  articles  might  be  condemned 
under  the  police  power  of  the  state  on  the  ground 
that  they  are  nuisances.  It  would  take  no  legislation 
to  determine  that  decayed  oysters,  when  exposed  in 
the  market  for  sale,  are  really  a  nuisance.  It  might, 
however,  require  legislation   to  determine  that  bulk 


720  PUBLIC   HEALTH   ADMINISTRATION 

oysters  containing  more  than  a  given  percentage  of 
water  are  adulterated.  Under  the  national  Pure  Food 
and  Drugs  Act,  Judgments  No.  2583  and  2584,  for  ex- 
ample, are  condemnations  of  cove  oysters  which  the 
government  claimed  were  adulterated  and  misbranded. 
Adulteration  of  the  product  was  alleged  on  the  infor- 
mation for  the  reason  that  an  excessive  amount  of 
water  had  been  mixed  and  packed  therewith  so  as  to 
reduce,  lower,  and  injuriously  affect  the  quality  of  the 
oysters.  Misbranding  was  alleged  for  the  reason  that 
the  statement  on  the  label  thereof  "Cove  Oysters" 
was  false  and  misleading,  as  it  conveyed  the  impres- 
sion that  the  product  was  canned  oysters  packed 
without  the  use  of  an  excessive  amount  of  water, 
whereas  it  consisted  of  canned  oysters,  packed  with 
an  excessive  amount  of  water.  In  this  case  the  deter- 
mination was  made  by  a  district  court  on  a  plea  of 
guilty  by  the  defendant. 

§461.  Standard  fixed  by  legislation.  There  are 
many  articles  of  food  which  have  no  definitely  fixed 
composition  by  nature.  Take,  for  example,  the  milk 
given  by  different  cows — the  product  of  one  cow  may 
contain  four  or  five  or  even  six  per  cent  of  butter  fat, 
whereas  that  taken  from  another  animal  may  contain 
less  than  two  per  cent.  It  is  not  sufficient  guarantee 
as  to  quality,  therefore,  simply  to  say  that  the  milk 
is  as  obtained  from  the  cows.  There  must  be  some 
definite  standard,  and  the  only  way  that  that  standard 
may  be  fixed  would  be  by  legislation.  We  therefore 
have  either  in  the  ordinances  of  cities,  or  in  the  enact- 
ments of  states,  definite  standards  as  to  the  composi- 
tion of  many  articles.  The  standard  which  may  be 
set  for  one  city  manifestly  does  not  apply  to  another 


PURE  FOOD  AND   DRUG  .REGULATION  721 

city  unless  by  further  legislation,  and  the  .standard 
satisfactory  to  one  state  may  differ  from  that  of 
its  neighbor.  The  standard  of  purity  for  drugs  is 
primarily  determined  by  the  Pharmacopoeial  Conven- 
tion, composed  of  pharmacists  and  j)hysicians,  and 
meeting  decennially.  Their  standard  as  so  adopted 
becomes  official  for  the  United  States  through  acts  of 
Congress.  The  Act  of  Congress,  in  a  few  words  prac- 
tically re-enacts  the  whole  Pharmacopoeia,  and  the 
standard  for  the  purity  of  drugs  is  thus  determined 
by  legislation.  Most  of  the  states  have  also  adopted 
that  book  as  their  standard.  In  its  regulation  of  com- 
merce the  federal  government  enforces  this  standard 
as  to  goods  passing,  either  into  this  country,  or  from 
one  state  to  another.  When,  however,  the  goods  have 
once  been  landed  in  a  given  state,  or  if  they  have 
never  entered  interstate  traffic,  the  federal  govern- 
ment has  no  authority.  Standards  of  purity  within 
the  individual  states  must  be  enforced  by  state  author- 
ity. 

§  462.  Misbranding.  In  the  enforcement  of  the  fed- 
eral act  much  stress  is  laid  upon  accuracy  of  label.  For 
example,  a  certain  brand  of  chewing  gum  has  borne 
the  label  "Pepsin,"  and  users  are  advised  that  it  is 
therefore  an  aid  to  digestion.  Judgment  1939  under 
the  Pure  Food  and  Drugs  Act  shows  that  the  amount 
of  pepsin  in  each  tablet  of  the  gum  is  not  more  than 
one-tenth  of  a  milligram,  a  mere  trace  which  would  be 
without  physiological  effect.  Such  a  statement  on  the 
label  is  therefore  misleading,  and  contrary  to  the 
spirit  of  the  act.  Such  an  error  might  not  be  posi- 
tively harmful  in  its  effect.  When,  however,  a  medi- 
cine is  put  as  a  cure  for  headache  and,  either  by  its 


722  PUBLIC    HEALTH   ADMINISTRATION 

name,  or  by  statements  printed  upon  the  label,  the 
buyer  is  induced  to  suppose  that  the  product  is  harm- 
less, if  indeed  it  contain  acetanelid,  for  example,  or 
morphine  or  cocaine,  the  buyer  may  be  positively  in- 
jured thereby.  Many  of  the  proprietary  medicines 
have  been  found  to  be  thus  misleading  and  harmful, 
and  some  are  even  dangerous.  Sometimes  it  happens 
that  when  a  large  quantity  of  a  mixture  is  put  up  con- 
taining some  such  poison  as  morphine  or  acetanelid,  a 
very  poisonous  proportion  may  find  its  way  into  a 
single  bottle.  A  patient  who  had  been  accustomed  on 
her  own  responsibility  to  take  a  certain  brand  of 
effervescent  salts,  much  used  for  the  cure  of  head- 
ache, one  day  took  a  very  small  dose,  but  it  chanced 
that  she  received  a  fatal  dose  apparently  of  acetanelid. 
Such  "cures"  which  endanger  health  are  of  manifest 
interest  relative  to  the  preservation  of  the  public  weal. 
§  463.  Dealer  bound  to  know  quality.  The  ordinary 
dealer  in  drugs,  particularly,  must  sell  his  goods  as  he 
buys  them,  trusting  to  the  honesty  of  the  producer. 
While  it  is  quite  possible  for  a  pharmacist  to  make  a 
chemical  examination  of  the  articles  which  he  sells,  it 
is  not  commercially  practicable.  It  will  require  too 
much  time  and  expense.  This  time  and  expense  the 
customers  must  needs  pay  for,  and  they  would  not  be 
likely  to  willingly  submit.  But  it  is  the  legal  duty  of 
the  pharmacist  to  know  the  quality  of  the  articles 
which  he  is  selling,  and  ignorance  will  be  no  excuse 
for  him  if  he  sells  goods  which  in  any  way  deviate 
from  the  standard.1  In  a  similar  way  it  has  been  held 
that  a  milk  man  is  responsible  for  the  standard  of  the 

i  District    of   Columbia  v.    Ljro- 
ham,  16  App.  D.  C.  185. 


PURE   POOD   AND   DRUG    REGULATION  723 

milk  which  he  is  selling,  and  if  that  milk  be  below  the 
standard  fixed  by  law,  even  though  it  be  just  as  it 
came  from  the  cow,  he  will  be  deemed  guilty  of  selling 
adulterated  milk.  He  must  know  the  quality  of  his 
milk.2 

§  464.  Serial  numbers.  Under  the  Pure  Food  and 
Drugs  Act  it  is  possible  for  the  local  dealer  to  shield 
himself  under  the  guarantee  of  the  wholesaler.  This 
guarantee  may  be  written  for  an  individual  article  and 
package  or  it  may  include  a  whole  bill  of  goods.  It  is 
also  provided  in  the  operations  of  this  law  that  a 
blanket  guarantee  may  be  filed  with  the  government 
by  a  manufacturer,  covering  all  of  the  goods  which  he 
manufactures.  Goods  so  guaranteed  bear  a  serial 
number  issued  by  the  department  with  the  legend 
' '  Guaranteed  under  the  Food  and  Drugs  Act,  June  30, 
1906."  This  guarantee  has  been  much  misunderstood. 
The  government  does  not  guarantee  anything.  The 
goods  may  be  the  rankest  imposition,  either  as  to 
quantity,  quality,  or  purity.  The  label  simply  means 
that  the  manufacturer  has  filed  his  statement  that  the 
goods  so  marked  comply  with  the  standard.  Because 
of  the  misunderstandings  which  arose  under  the  use 
of  the  statement  "  Guaranteed  under  the  Food  and 
Drugs  Act,"  Food  Inspection  Decision  No.  153  was 
issued,  dated  May  5,  1914,  and  amended  by  Decision 
155,  dated  May  29, 1914,  effective  May  1, 1916,  and  pro- 
visionally effective  Nov.  1, 1916.  This  decision  cancels 
all  guaranties  on  file,  and  prohibits  the  future  use  of 
the  expression  mentioned.  All  serial  numbers  are 
also  canceled  and  prohibited.  The  original  intent  of 
the  provision  for  the  serial  number  was  commendable. 

2  Commonwealth  v.  Wheeler,  91 
N.  E.  E.  415. 


724  PUBLIC   HEALTH   ADMINISTRATION 

Practically  it  was  found  that  it  served  only  as  an  aid  to 
those  who  desired  to  conduct  doubtful  business,  and  its 
abandonment  became  a  matter  of  necessity.  The  act 
further  provides  that  if  the  goods  be  not  manufactured 
by  the  party  named,  he  must  label  them  "Manufac- 
tured for,"  or  "Distributed  by,"  or  simply  the  word 
"Distributers";  and  the  ruling  of  the  department  de- 
mands that  those  words  be  in  letters  not  smaller  than 
eight  point  capitals,  except  in  case  of  small  packages, 
when  the  size  of  type  may  be  reduced  proportionately. 
Some  firms  desiring  to  keep  secret  the  fact  that  they  are 
not  really  the  manufacturers,  attempt  to  evade  this 
regulation  by  putting  the  word  "Distributers"  in 
smaller  type  and  more  difficult  to  read.  The  guarantee 
of  the  manufacturer  thus  made  only  covers  the  trans- 
action between  himself  and  his  direct  customer.  For 
example,  suppose  a  manufacturer  in  Philadelphia  sends 
to  a  wholesaler  in  Baltimore  under  his  general  guar- 
antee an  article  which  is  misbranded;  the  wholesaler, 
in  turn,  sells  it  to  a  jobber  who  disposes  of  the  same 
article  in  the  original  package  to  a  dealer  in  Wash- 
ington. If  this  article  be  seized  in  Washington  and 
there  found  to  violate  the  law  by  virtue  of  being  mis- 
branded,  even  though  it  bear  the  legend  ' '  Guaranteed 
under  the  Food  and  Drugs  Act,  June  30,  1906,"  the 
Baltimore  jobber  will  be  held  responsible.  The  origi- 
nal guarantee  ' '  cuts  no  figure ' '  in  the  final  transaction, 
and  the  jobber  has  absolutely  no  protection  unless  he 
may  have  secured  a  special  guarantee  from  his  whole- 
saler. The  large  number  of  judgments  obtained  by  the 
government  under  this  act  for  articles  bearing  serial 
numbers  is  of  itself  a  clear  evidence  that  goods  so 
marked  are  not  specially  endorsed  by  the  government. 


PURE   FOOD   AND    DRUG   REGULATION  725 

An  instructive  case  relative  to  the  subject  of  guar- 
anty is  set  forth  in  the  Notice  of  Judgment  No.  2471 
of  the  Department  of  Agriculture.2*  The  D.  B.  Scully 
Syrup  Co.,  of  Chicago,  manufactured  sorghum  for 
Loverin  &  Browne  Co.,  also  of  Chicago,  and  sold  the 
same  to  said  company.  This  latter  firm,  without  in 
any  way  changing  the  product  otherwise  than  repack- 
ing it,  shipped  it  to  New  Mexico.  Since  it  bore  the  label 
"1  Gal.  Loverin 's  Sorghum,  Loverin  &  Browne  Co., 
Chicago,  111.,"  whereas  examination  showed  that  it 
contained  only  .845  of  a  gallon,  the  package  was  con- 
sidered misbranded,  and  information  was  filed  in  the 
U.  S.  District  Court  at  Chicago  against  the  Scully  com- 
pany because  that  company  had  given  the  following 
guaranty  to  the  Loverin  &  Browne  Co.,  which  guaranty 
had  not  been  revoked,  but  was  still  in  force: 

Food  Guaranty 

The  undersigned  D.  B.  Scully  Syrup  Company  of  Chicago,  state  of  Illi- 
nois, United  States  of  America,  does  hereby  warrant  and  guarantee  unto 
Loverin  <$~  Browne  Co.,  a  corporation,  having  office  at  Chicago,  Illinois, 
that  any  and  all  articles  of  food  or  drugs,  as  defined  by  the  Act  of 
Congress  approved  June  30,  1906,  entitled  "An  Act  for  preventing  the 
manufacture,  sale  or  transportation  of  adulterated  or  misbranded  or 
poisonous  or  deleterious  foods,  drugs,  medicines  and  liquors,  and  for 
regulating  traffic  therein,  and  for  other  purposes,"  which  the  undersigned 
has  sold  since  October  1st,  1906,  or  shall  at  any  time  hereafter  prepare, 
manufacture  for,  sell  or  deliver  to  said  Loverin  <$•  Browne  Co.,  will  comply 
with  all  the  provisions  of  said  act  of  Congress  and  are  not  and  shall  not 
be  in  any  manner  adulterated  or  misbranded  within  the  meaning  of  said 
Act. 

It  is  expressly  understood  that  this  shall  be  a  continuing  guaranty  until 
notice  of  revocation  be  given  in  writing  and  notice  of  acceptance  of  the 
guaranty  is  hereby  waived. 

Dated  at  Chicago  this  31st  day  of  December,  1906. 

D.  B.  Scully  Syrup  Co.     Seal. 
M.  E.  Scully  Seal. 

On  February  18,  1913,  the  case  having  come  on  for 
trial  before  the  court  and  a  jury,  after  the  submission 
of  evidence  the  following  charge  directing  a  verdict  of 

2a  F.  &  D.  No.  2174,  I.  S.  14094  b  and  2726  e. 


726  PUBLIC    HEALTH   ADMINISTRATION 

not  guilty  was  delivered  to  the  jury  by  the  court  (A.  B. 
Anderson,  J.) : 

' '  I  might  explain  to  you  gentlemen  here  that  this  is 
an  Act  of  Congress,  and  Congress  has  no  right  to  legis- 
late on  this  pure  food  question  except  so  far  as  it 
affects  interstate  commerce.  We  all  understand  that. 
And,  now,  there  isn't  any  showing  here  at  all,  passing 
by  some  other  questions,  that  the  Scully  Syrup  Com- 
pany, defendant,  had  anything  whatever  to  do  with  the 
shipment.  The  evidence  showed  that  the  Scully  Syrup 
Company  made  this  for  Loverin  &  Browne  Company 
and  that  Loverin  &  Browne  Company  shipped  it,  so 
that  they  have  got  the  wrong  defendant  here.  The  gov- 
ernment undertakes  to  claim  that  by  reason  of  the 
statute  which  provides  that  the  dealer  shall  be  immune 
when  the  manufacturer  guarantees  to  him  that  the  ar- 
ticle is  not  misbranded — that  in  that  case  the  dealer  is 
out,  Loverin  &  Browne  Company,  and  that  the  other 
people  are  in.  That  does  not  relieve  the  government  of 
the  responsibility  of  proving  some  connection  with  the 
shipment  by  the  Scully  Syrup  Company.  And  in  the 
next  place,  the  guarantee  set  forth  is  no  guarantee  at 
all.  The  guarantee  is  no  guarantee  at  all  under  the 
statute.  It  isn't  anything  in  the  world  but  a  promise 
that  in  the  future — made  six  years  ago — they  will  not 
violate  the  law.  Let  the  record  show  a  verdict  of  not 
guilty." 

Clearly,  in  this  case  it  was  the  Loverin  &  Browne 
Company  which  had  violated  the  national  Pure  Food 
and  Drugs  Act,  though  they  may  have  been  innocent  of 
any  intentional  wrongdoing.  At  civil  suit  it  would 
seem  that  this  firm  could  recover  from  the  manufac- 
turers for  such  damages  as  might  appear.  In  addition, 


PURE   FOOD   AND   DRUG    REGULATION  727 

the  Scully  company  would  be  liable  to  prosecution 
under  the  Illinois  laws,  if  in  fact  it  should  be  shown 
that  the  state  statutes  had  been  violated;  but  so  long 
as  this  firm  did  not  ship  their  product  outside  of  the 
state,  nor  give  such  a  guaranty  as  the  federal  act 
required,  the  Scully  company  would  not  be  liable  under 
the  national  law. 

§  465.  Commercial  motive  in  food  legislation.  Very 
frequently  statutes  are  enacted  or  ordinances  passed 
apparently  for  the  one  object  of  securing  honest  goods 
and  free  from  harm,  when  the  real  object  is  to  cut  off 
competition.  One  of  the  best  illustrations  of  this  mat- 
ter is  found  in  the  various  laws  relative  to  oleo- 
margarine. This  substitute  for  butter  is  produced 
from  animal  fats  or  vegetable  oils,  and  contains  chemi- 
cally the  same  ingredients  practically  as  ordinary 
dairy  butter.  It  differs  in  color  from  butter;  it  is 
wholesome  and  nutritious,  and  much  less  expensive. 
There  is  no  reason  why  it  may  not  properly  be  largely 
used  as  a  substitute  for  butter.  Were  the  facts  prop- 
erly presented  to  the  people  the  oleomargarine  would 
be  more  generally  used.  The  dairy  interests  early  be- 
came alarmed,  and  demanded  that  laws  be  passed  for 
their  protection.  In  some  states  the  manufacture  was 
absolutely  prohibited;  in  others,  it  was  decreed  that 
oleomargarine  must  not  be  colored  to  represent  but- 
ter, ignoring  the  fact  that  most  dairy  or  creamery 
butter  is  artificially  colored  to  a  greater  or  less  degree. 
One  state  required  that  oleomargarine  must  be  colored 
pink  if  sold.  The  apparent  object  in  all  these  various 
forms  of  legislation  was  evidently  to  prevent  people 
from  buying  oleomargarine  under  the  supposition  that 
they  were  buying  butter  made  from  cream. 


728  PUBLIC   HEALTH   ADMINISTRATION 

The  court  of  appeals  in  New  York  found  that  oleo- 
margarine was  wholesome  and  nutritious,  and  that  the 
matter  of  fraudulent  imitations  of  butter  was  covered 
by  another  act,  so  that  the  fact  that  it  competed  with 
another  industry  and  thus  reduced  the  price  of  an 
article  of  food  remained  as  the  sole  reason  for  pro- 
hibiting the  manufacture.  The  court  added:  ''Who 
will  have  the  temerity  to  say  that  these  constitutional 
principles  are  not  violated  by  an  enactment  which  ab- 
solutely prohibits  an  important  branch  of  industry  for 
the  sole  reason  that  it  competes  with  another,  and  may 
reduce  the  price  of  an  article  of  food  for  the  human 
race?"3  Prohibition  of  manufacture  was  early  ap- 
proved in  the  state  of  Pennsylvania,4  and  this  decision 
was  later  confirmed  by  the  Supreme  Court  of  the 
United  States.5  In  both  of  these  decisions  the  statute 
was  upheld  because  of  the  difficulty  in  preventing 
substitution.  The  Minnesota  supreme  court  took  a 
similar  view,6  as  did  that  of  Maryland.7  The  Penn- 
sylvania statute  prohibited  the  sale  as  well  as  the 
manufacture  of  the  article.  In  Schollenberger  v. 
Pennsylvania8  the  Supreme  Court  of  the  United 
States  held  that  while  the  prohibition  was  effective 
as  against  the  manufacture  within  the  state,  it  could 
not  prevent  the  sale  of  oleomargarine  imported  from 
other  states.  The  prohibition  of  the  manufacture  of 
oleomargarine  in  the  imitation  of  yellow  butter  by 
adding  ingredients  which  change  its  natural  color  is 

s  People  v.  Marx,  99  N.  Y.  377.  e  Butler  v.   Chambers,  36  Minn. 

*  Powell   v.    Commonwealth,    114  69. 

Pa.  265.  7  Wright  v.  State,  88  Md.  436, 

s  Powell  v.  Pennsylvania,  127  U.  41  Atl.  795. 

S.  678.  8  171  U.  S.  1. 


PURE  FOOD  AND  DRUG  REGULATION  729 

found  in  many  states  and  has  been  generally  upheld.9 
This  prohibition  of  the  imitation  of  butter  has  been 
upheld  as  to  oleomargarine  imported  from  other  states 
and  sold  in  original  packages,  on  the  ground  that  the 
object  of  the  statute  is  only  to  suppress  false  pretenses, 
and  that  the  freedom  of  commerce  among  the  states 
does  not  demand  a  recognition  of  the  right  to  practice 
a  deception  upon  the  public  in  the  sale  of  any  articles, 
even  those  that  may  have  become  the  subject  of  trade 
in  different  parts  of  the  country.10  Professor  Freund 
says:11  "The  validity  of  provisions  requiring  oleo- 
margarine to  be  distinctly  labeled  as  such,  to  be  sold  in 
prescribed  forms  of  packages,  or  in  rooms  separate 
from  those  in  which  butter  is  sold,  or  that  the  pur- 
chaser be  expressly  informed  of  the  nature  of  the 
article,  is,  in  principle,  not  questioned.12  Such  pro- 
visions, which  do  not  forbid  imitation,  are  found  in 
a  number  of  states.  The  requirement  of  some  laws 
that  oleomargarine  be  given  a  color  or  a  name  cal- 
culated to  prejudice  purchasers  and  to  make  the 
article  odious,  is  evidently  of  a  different  character;  it 
has  been  upheld  in  several  cases  as  an  exercise  of 
legislative  discretion  beyond  the  control  of  the  courts, 
but  the  Supreme  Court  of  the  United  States  treats 
prejudicial  requirements  as  virtual  prohibition,  and 
holds  them  to  be  invalid  as  far  as  interstate  commerce 
is  concerned. " 13    In  New  Jersey  it  was  held  that  the 

9  People   v.    Arensberg,    105    N.  10  Plumley  v.  Massachusetts,  155 

Y.  123;  McAllister  v.  State,  72  Md.  U.  S.  461. 

390 ;    State    ex   rel.    Waterbury   v.  « Freund,  Police  Power,   284. 

Newton,  50  N.  J.  L.  534 ;  State  v.  12  State  ex  rel.  Bayles  y.   New- 

Addington,  77  Mo.  110;  Ex  parte  ton,  50  N.  J.  L.  549. 

Plumley,  156  Mass.  236 ;   McCann  ia  State  v.   Marshall,   64   N.    H. 

v.    Commonwealth,    198    Pa.    509;  549;    State  v.   Myers,  42   W.   Va. 

Beha  v.  State    (Neb.),   93  N.  W.  822,    35   L.   E.    A.    844;    State   ex 

155.  rel.  Weideman  v.  Horgan,  55  Minn, 


730  PUBLIC    HEALTH   ADMINISTRATION 

prohibition  against  the  coloring  of  oleomargarine  did 
not  exclude  the  use  of  a  substantial  ingredient  like 
cotton-seed  oil,  although  it  does  give  color  to  the 
product.14  In  Ohio  it  was  held  that  coloring  matter 
may  not  be  added  although  it  gives  an  aroma  and 
flavor,  thus  drawing  a  distinction  between  ingredients 
which  are  substantial  and  those  which  are  not.15  We 
may  practically  say  that  anything  of  intrinsic  value 
may  be  added  unless  its  purpose  is  imitation.16  Upon 
a  similar  ground  the  supreme  court  of  Illinois  upheld 
a  statute  prohibiting  the  coloring  of  distilled  vinegar 
so  that  it  would  resemble  cider  vinegar.  The  court 
remarked  that  a  false  color  may  sometimes  be  more 
liable  to  deceive  than  a  false  label.  It  is  quite  as 
necessary  to  protect  the  customer  as  the  dealer.  In 
point  of  fact  much  vinegar  is  sent  out  from  the  stores 
without  label.  Genuineness  of  label  would  be  no  pro- 
tection for  the  consumer.  As  the  court  remarked  in 
this  case,  such  prohibitions  as  those  of  the  statute 
under  consideration  may  embarrass  dealers  in  that 
class  of  goods.  The  prudence  of  such  a  regulation 
may  be  debatable,  but  it  is  not  indefensible.17  It  is 
the  duty  of  the  government  to  protect  its  citizens  from 
fraud.  It  is  therefore  a  duty  to  prohibit  the  use  of 
coloring  matters  intended  evidently  to  deceive,  but 
unless  the  coloring  matter  be  in  itself  harmful,  or  if 
it  aid  in  the  sale  of  substances  in  themselves  harmful 
in  the  place  of  harmless  or  useful  articles,  the  problem 
is  purely  commercial,  and  not  for  the  attention  of  a 

183,  56  N.  W.  688;  Collins  v.  New  «  People  v.  Bieseeker,  169  N.  T. 

Hampshire,   171  U.   S.   30.  53. 

i4  Ammon  v.   Newton,   50   N.   J.  « People    v.     William    Henning 

L.  543.  Co.,  103  N.  E.  E.  530. 

isWeller  v.  State,  53  Ohio,  77, 
40  N.  E.  1001. 


PURE  FOOD  AND  DRUG  REGULATION  731 

public  health  official,  unless  the  duty  be  specifically 
assigned  to  him  by  law. 

One  of  the  difficult  problems  relative  to  pure  food 
legislation  is  illustrated  by  the  subject  of  alcohol.  This 
article  is  much  used  for  its  preservative  quality,  and 
for  its  ability  to  extract  certain  active  principles  from 
crude  drugs.  The  result  is  that  most  liquid  medicines 
contain  a  larger  or  smaller  quantity  of  alcohol.  Alcohol 
is  the  natural  result  of  fermentation  of  sugary  solu- 
tions, and  minute  quantities  may  therefore  be  found 
in  many  articles  of  food.  It  is  admitted  without  ques- 
tion that  alcohol  is  an  intoxicant,  but  that  does  not 
show  that  an  article  containing  alcohol  is  necessarily 
so,  and  in  the  matter  of  drugs,  though  a  large  propor- 
tion of  the  bulk  may  be  alcohol,  still  owing  to  its 
weaker  action,  it  may  not  be  important.  Definite 
standards  must  be  fixed,  either  by  legislative  or  execu- 
tive decision,  and  in  fixing  these  standards  extremes 
should  be  avoided. 

§  466.  Regulation  of  milk  industry.  For  the  public 
sanitarian  no  other  subject  so  fully  represents  the 
various  matters  pertaining  to  pure  food  regulation  as 
does  the  milk  industry.  (§§8,  423.)  Practically  every 
possible  phase  of  the  general  problem  is  covered.  It 
illustrates  the  fact  that  our  interest  in  pure  food  must 
not  depend  upon  chemical  analysis,  nor  bacteriologic 
investigations  only.  The  industry  must  be  controlled 
from  the  beginning  to  the  end.  In  order  to  have  good 
milk  it  is  necessary  that  the  cows  be  healthy  and  kept 
in  well  lighted  and  well  ventilated  places,  and  that  all 
stables  and  barnyards  be  kept  clean.  It  is  now  cus- 
tomary in  all  of  the  better  regulations  to  require  that 
the  udders  be  washed  before  milking,  and  that  the 


732  PUBLIC    HEALTH   ADMINISTRATION 

milkers  wear  clean  white  suits  when  at  work,  and  wash 
their  hands  before  milking.  The  milk  must  be  im- 
mediately cooled  and  should  be  kept  cool  until  deliv- 
ered to  the  customers.  No  person  who  comes  in  con- 
tact with  infectious  disease  should  have  anything  to 
do  with  the  milk  business.  The  strictest  cleanliness 
is  necessary  in  bottling  plants,  and,  to  prevent  possible 
violations  of  regulation,  the  caps  to  the  bottles,  as  well 
as  the  bottles,  should  bear  such  definite  marking  that 
the  goods  may  be  traced.  It  is  more  or  less  a  habit 
of  small  dealers  to  buy  miscellaneous  bottles  from  junk 
dealers.  The  junk  men  buy  them  from  boys  who  find 
it  profitable  to  gather  bottles  from  all  sources.  Boys 
are  thus  taught  to  steal  the  bottles  which  have  been 
left  out  of  doors  to  be  picked  up  by  the  regular  driv- 
ers. They  also  gather  bottles  which  have  been  used 
for  purposes  which  makes  their  further  use  as  milk 
containers  dangerous.  There  is  also  evidence  tend- 
ing to  show  that  some  milk  sellers  make  a  habit  of 
stealing  bottles  of  milk  left  by  other  drivers.  Milk 
thus  stolen  is  transferred  to  other  bottles  in  the  wagon 
and  new  caps  are  applied.  The  bottles  thus  filled  fre- 
quently have  been  simply  rinsed  out,  and  they  are 
therefore  dangerous.  If  the  regulation  be  strict  that 
the  dealer  must  only  use  bottles  and  caps  bearing  his 
own  name,  there  would  be  no  excuse  for  having  in  his 
possession  any  other  supply,  and  the  fact  of  having 
in  his  possession  such  foreign  bottles  would  be  prima 
facie  evidence  of  crookedness.  Another  class  of  cases 
is  illustrated  by  the  following  incident.  An  officer  of 
health  received  a  bottle  of  impure  milk  from  a  cus- 
tomer, and  made  complaint  against  the  dealer  (A), 
whose  name  was  blown  in  the  bottle.    The  customer 


PURE   FOOD   AND   DRUG   REGULATION  733 

was  not  a  patron  of  A  and  on  investigation  it  was 
learned  that  the  bottle  had  been  purchased  at  a 
grocery,  which  also  was  not  a  customer  of  A.  It  then 
developed  that  the  grocer  obtained  his  supply  from  a 
small  dealer  who  had  previously  given  trouble  by  his 
carelessness  in  handling  his  milk,  and  by  his  disregard 
of  all  sanitary  regulations.  What  we  have  said  rela- 
tive to  the  milk  itself  must  of  necessity  be  applied  to 
all  milk  products. 

The  importance  of  regulations  pertaining  to  the  con- 
duct of  the  milk  business  is  many  times  greater  in  the 
large  cities  than  it  is  in  the  country;  (§8.)  but  the 
milk  is  produced  in  the  country,  perhaps  in  another 
state  from  that  in  which  it  is  used.  Formerly  all  reg- 
ulation of  the  industry  was  left  to  the  local  govern- 
ment; but  the  local  government  has  no  authority  out- 
side of  its  own  limits.  In  so  far,  therefore,  as  the  reg- 
ulation is  left  to  the  local  government  it  must  make  a 
distinction  between  milk  produced  within  its  limits 
and  that  produced  from  outside  sources.  Such  dif- 
ference in  requirements  as  may  be  based  upon  this 
distinction  is  reasonable.18  Cows  within  the  city  may 
be  frequently  inspected  by  local  officers,  and  if  found 
sick,  or  infected,  they  may  be  kept  under  isolated 
observation.  Cows  kept  outside  of  the  city  are  not 
under  the  jurisdiction  of  the  city,  and  they  cannot  be 
inspected  frequently  by  city  officers.  In  fact,  the  city 
officer  attempting  to  make  an  inspection  outside  of  his 
jurisdiction  might  be  regarded  as  a  trespasser.  Since 
the  same  dairy  district  may  supply  different  cities,  it 

is  Adams  v.  Milwaukee,  129  N. 
W.  518;  Adams  v.  Milwaukee,  228 
U.  S.  572. 


734  PUBLIC    HEALTH   ADMINISTRATION 

becomes  important  that  the  real  regulation  of  the  in- 
dustry be  no  longer  left  to  municipalities.  States  may 
enact  such  reasonable  laws  for  the  purpose  as  seem 
most  fitting  to  the  legislature.  Of  recent  years  the 
federal  government  has  found  it  necessary  to  take  an 
active  part  in  breaking  up  the  commerce  in  impure,  or 
disease-bearing  milk.  This  was  necessary  because  the 
states  were  unable  to  cope  with  the  problem,  though 
essentially  one  of  police  power.  Under  the  authority 
of  the  pure  food  and  drugs  act  officers  of  the  govern- 
ment have  secured  numerous  convictions  for  attempt- 
ing to  send  milk  from  one  state  to  another,  when  it 
was  either  overloaded  with  bacteria,  or  was  watered, 
or  otherwise  below  standard. 

It  is  the  duty  of  the  local  government  to  take  such 
measures  as  are  necessary  for  the  preservation  of  the 
local  health.  In  the  settlement  of  the  questions  "By 
whom  shall  this  local  power  be  exercised?"  and  "To 
what  extent  are  they  justified  in  regulating?"  much 
depends  upon  the  constitutions  and  statutes  of  the 
respective  commonwealths.  In  general  it  seems  wise 
to  leave  all  semblance  of  legislation  to  the  ordinary 
legislative  body  of  the  city  or  town — the  village  or 
city  council — and  to  leave  to  the  health  department 
the  purely  executive  duties.  The  health  department 
is  not  always  legally  justified  in  taking  all  precau- 
tions for  the  preservation  of  the  public  health.  It 
is  well  known  to  health  officials  that  "open"  milk, 
that  is  milk  kept  in  receptacles  from  which  portions 
are  dipped  or  poured  out  for  customers,  is  a  great 
source  of  infection.  From  a  sanitary  point  of  view 
such  a  practice  is  absolutely  inexcusable.  A  dealer 
who  sells  good  milk  would  not  dare  to  expose  his  prod- 


PURE   FOOD    AND    DRUG    REGULATION  735 

uct  to  the  possibilities  of  contamination  presented  by 
that  old  method.  The  consequence  is  that,  as  a  rule, 
today  only  milk  which  has  been  carelessly  produced 
and  handled  would  be  found  marketed  in  that  manner. 
vSuch  milk  should  be  recognized  as  a  nuisance  in  posse. 
For  such  reasons  a  Massachusetts  board  of  health  pro- 
hibited such  sale.  The  matter  finally  came  before  the 
supreme  court  of  the  state  which  held  that  the  board 
had  no  authority  to  make  such  a  regulation.19  "If 
the  board  should  be  certain  that  the  smoking  of  cigar- 
ettes by  boys  affects  their  health  injuriously  it  would 
have  no  power  to  make  a  regulation  forbidding  the 
smoking  of  them  by  boys  under  a  certain  age  or  the 
sale  of  them  to  such  boys.  It  has  no  power  to  make 
general  regulations  as  to  conduct  or  practices  injur- 
ious to  health  which,  if  indulged  in  by  many  persons, 
affect  the  health  of  the  public.  The  statute  above 
quoted  gives  the  board  jurisdiction  to  deal  with  'nui- 
sances, sources  of  filth,  and  causes  of  sickness  within 
its  town.'  Plainly,  the  milk  question  was  not  a  nui- 
sance or  a  source  of  filth.  In  determining  the  mean- 
ing of  the  words  'causes  of  sickness'  the  doctrine  of 
noscitur  a  sociis  is  to  be  applied.  This  is  a  little 
broader  term  than  the  two  terms  that  precede  it,  but 
it  is  of  the  same  general  character.  Primarily  it  refers 
to  something  local,  and  the  board  is  directed  'to 
destroy,  remove,  or  prevent  the  same.'  In  section  67 
we  have  another  indication  of  the  meaning  of  these 
words  in  the  requirement  that  the  board  shall  order 
the  owner  or  occupant  of  private  premises  to  remove 
any  'nuisance,  source  of  filth,  or  cause  of  sickness 

is  Commonwealth    v.    Drew,    208 
Mass.  493. 


736  PUBLIC    HEALTH   ADMINISTRATION 

found  therein.'  So  under  section  74,  lie  may  obtain  a 
warrant  directed  to  an  officer  or  to  a  member  of  the 
board  commanding  him  to  destroy,  remove,  or  prevent 
any  'nuisance,  source  of  filth,  or  cause  of  sickness,'  in 
reference  to  which  they  have  made  complaint  to  a 
magistrate.  "We  are  of  opinion  that,  within  the  mean- 
ing of  the  language  of  these  sections,  milk  kept  in  a 
vessel,  as  this  was  kept  by  the  defendant,  was  not  a 
'nuisance,  source  of  filth,  or  cause  of  sickness,'  which 
gave  the  board  of  health  jurisdiction  to  take  any 
action  or  make  any  regulation  under  the  revised  laws, 
Chapter  75,  section  65. ' '  It  must  be  remembered  that 
the  court  did  not  in  the  least  condemn  the  idea 
expressed  in  the  regulation.  It  only  affirmed  that 
under  the  statutes  such  power  had  not  been  given  to 
the  board  of  health. 

In  a  similar  manner,  when  the  city  of  Chicago 
passed  an  ordinance  which  prohibited  the  sale  of  dairy 
products  by  those  who  also  sold  such  other  merchan- 
dise as  drygoods,  it  was  considered  a  manifest  effort 
of  the  small  retailer  to  cripple  the  department  stores, 
rather  than  a  genuine  health  measure.  It  was  not, 
therefore,  a  true  use  of  police  power  by  the  city,  and 
was  therefore  illegal.20 

On  the  other  hand,  an  ordinance  of  the  city  of  St. 
Louis  which  prohibited,  as  injurious  to  health,  milk 
being  sold,  offered,  or  exposed  for  sale,  which  con- 
tained any  foreign  substances  or  preservatives  of  any 
kind,  was  not  only  sustained,  but  it  was  interpreted  to 
include  watered  milk,  on  the  ground  that  the  dilution 
reduced  the  nutritious  value  of  the  article.21     In  New 

20  Chicago  v.  Netcher,  183  111.  434;  also  People  v.  Chipperly,  101 
104,   55   N.  E.   707.  N.  Y.  634. 

2i  St.  Louis  v.  Amel,  139  S.  W. 


PURE   FOOD    AND    DRUG    REGULATION  737 

York  state  it  was  held  that  the  authority  to  enact  a 
sanitary  code,  conveys  also  authority  to  make  further 
regulations  as  to  the  conduct  of  the  milk  business, 
beyond  those  found  in  the  statutes  of  the  state.22  So, 
realizing  that  dirty  milk  bottles  furnish  a  good  place 
for  the  production  of  bacteria,  and  that  thus  market 
milk  may  become  contaminated  with  even  dangerous 
germs,  the  New  York  city  ordinance  made  it  neces- 
sary that  users  of  milk  immediately  wash  the  bottles, 
and  that  the  dealers  must  not  have  in  their  possession 
such  unwashed  receptacles.  This  regulation  was  sup- 
ported by  the  court.23 

It  is  generally  agreed  that  local  governments  have 
the  right  to  regulate  the  milk  industry,  and  it  is  cus- 
tomary that  the  regulation  shall  be  aided  by  requiring 
licenses  from  all  engaged  in  the  business,  and  the 
city  may  require  a  license  tax  to  be  paid.24  "If  the 
board  should  add  unreasonable  and  improper  overin- 
quisitorial  questions  to  be  answered,  and  the  applicant 
should  refuse  for  that  reason  to  comply  with  the  form, 
the  question  of  the  propriety  of  those  questions  might 
be  raised  by  him;"  but  a  board  may  be  given  power 
to  withhold  licenses  to  sell  milk,  for  proper  cause 
based  on  the  existence  of  defective  sanitary  condi- 
tions.25 When  the  city  has  the  power  to  license, 
restrain,  and  regulate  the  sale  of  milk,  it  also  has  the 
power  to  revoke  licenses,  and  it  may  vest  such  power 
in  the  health  commissioner,  with  the  right  to  exercise 

22  Polinsky  v.  People,  73  N.  Y.  24  State  ex  rel.  Niles  v."  Smith, 
65.  57  So.  426. 

23  People  v.  Roth,  Court  of  Spe-  25  State  ex  rcl.  Niles  v.  Smith, 
cial   Sessions,   City   of   New   York,  57  So.  426. 

Nov.  1912. 


738  Public  health  administration 

the  same  without  notice  and  summarily.26  Though  no 
order  has  been  adopted  by  the  board  of  health  to  that 
effect,  a  board  may  revoke  the  license  to  sell  milk,  and 
a  person  who  has  been  convicted  four  times  of  selling 
or  offering  for  sale  adulterated  milk  is  an  unfit  per- 
son to  receive  a  permit  to  deal  in  milk.27 

Statutes  and  ordinances  relative  to  the  milk  indus- 
try should  be  as  definite  as  possible,  but  at  the  best 
something  must  be  left  to  executive  discretion.  A 
provision  of  the  sanitary  code  of  the  city  of  New 
York  which  made  the  right  to  sell  milk  to  depend 
upon  conditions  imposed  by  the  board  of  health, 
although  those  conditions  were  not  stated  in  the  code, 
was  upheld  by  the  court.28 

It  is  becoming  well  recognized  that  much  of  human 
tuberculosis,  especially  among  the  children  of  the 
cities,  comes  from  milk  taken  from  tubercular  cows. 
A  cow  which  is  well  advanced  with  tuberculosis  may 
be  easily  detected  by  inspection,  but  even  in  the  early 
stages  a  cow  may  be  producing  dangerous  milk,  and 
at  that  stage  it  is  exceedingly  difficult  to  detect  the 
disease  either  by  physical  examination  or  inspection. 
By  injecting  such  a  cow  with  tuberculin  a  typical  reac- 
tion is  produced,  and  by  this  test  fairly  accurate 
results  are  obtained  by  competent  operators.  The  test 
works  no  injury  to  the  cow.  In  the  later  stages  the 
results  of  the  operation  are  not  trustworthy,  but  then 
the  test  is  not  so  necessary.  When  made,  it  is  essen- 
tial that  the  test  be  performed  by  a  competent  obser- 
ver, and  under  proper  conditions.     Manifestly,  health 

26  State  v.  Milwaukee,  121  1ST.  W.  28  People  v.  Van  De  Carr,  175 
658.                                                                N.  Y.  440,  67  N.  E.  913. 

27  People  v.  Health  Department, 
New  York,  82  N.  E.  187. 


PURE   FOOD   AND   DRUG   REGULATION  739 

departments  should,  as  far  as  possible,  prevent  the 
use  of  raw  milk  from  diseased  cows.  It  is  easier  to 
detect  the  danger  in  the  cows  than  in  the  milk,  and 
consequently  it  has  been  ordered  in  many  cities  that 
no  milk  be  sold  except  from  cows  which  have  success- 
fully passed  the  tuberculin  test.  This  requirement 
has  been  upheld  in  several  cases,  and  may  now  be  con- 
sidered as  a  definitely  accepted  method  of  eliminating 
this  one  danger.29  Whether  or  not  a  municipality  is 
supplied  from  cows  that  are  tubercular  is  primarily  a 
question  to  be  settled  by  the  health  department,  and 
in  making  their  selection  of  methods  for  test  that 
board  should  select  a  method  which  is  well  recognized, 
thoroughly  approved,  and  as  reliable  as  any.30  The 
selection  of  method  is  an  executive  problem,  or  legis- 
lative problem,  and  not  one  for  judicial  determina- 
tion.31 

The  tuberculin  test  applies  only  to  the  one  disease 
of  tuberculosis.  In  the  Nelson  case,32  those  attacking 
the  requirement  of  tuberculin  test  argued  in  favor  of 
a  requirement  of  pasteurization  for  the  above  reason. 
The  court  declined  to  be  drawn  into  that  controversy, 
saying  that  it  was  a  question  which  must  be  settled 
by  those  who  made  the  laws  or  ordinances.  It  may 
be  stated,  however,  that  when  properly  performed  the 
operation  of  pasteurization  does  kill  most  of  the  dis- 
ease producing  bacteria  without  materially  injuring 

29  Borden   v.    Board   of   Health,  si  Nelson    v.     Minneapolis,     112 

Montelair,   80   Atl.    30;    Nelson   v.  Minn.    16;    Knobloch   v.   C,   M.   & 

Minneapolis,  112  Minn.  16;  Adams  St.  P.  Ry.  Co.,  31  Minn.  402;  Du 

v.    Milwaukee,    129    N.    W.    518;  luth  v.  Mallett,  43  Minn.  204;  St. 

Adams   v.    Milwaukee,    228    U.    S.  Louis  v.  Liessing,  190  Mo.  464. 

672.  32  Nelson    v.     Minneapolis,     112 

so  Borden  v.   Montelair,   80  Atl.  Minn.  16. 
30. 


740  PUBLIC    HEALTH   ADMINISTRATION 

the  food  value  of  the  milk.  What  is  called  ' '  commer- 
cial pasteurization,"  which  means  the  rapid  heating, 
and  rapid  cooling  of  the  article,  when  at  a  relatively 
low  temperature  does  not  kill  the  germs.  When  at 
a  high  temperature,  sufficient  to  kill  disease  germs,  it 
injures' the  taste  of  the  milk,  and,  to  some  degree  at 
least,  it  seems  to  lower  its  nutritive  value,  or  its 
digestibility.  Properly  performed  it  should  be  kept 
at  a  temperature  of  about  140°  for  twenty  minutes. 
This  treatment  of  milk  is  being  required  not  only  for 
milk  to  be  used  as  milk,  but  also  for  milk 
to  be  used  in  the  manufacture  of  butter  and 
cheese,  for  certain  disease  germs  may  exist  for 
a  long  time  in  those  milk  products.  It  does 
not,  as  has  sometimes  been  said,  make  dirty  milk  pure, 
but  it  does  reduce  the  dangers  lurking  in  milk  pro- 
duced under  unfavorable  conditions.  It  is,  therefore, 
a  reasonable  provision,  and  one  which  has  the  appro- 
val of  scientific  observers  and  administrators,  though 
it  has  not  received  approval  in  a  high  court,  and  cer- 
tain dairy  interests  were  able  to  secure  the  passage  of 
a  law  in  Illinois  forbidding  any  city  in  that  state  from 
making  such  a  requirement.  Such  a  statute,  though 
contrary  to  the  judgment  of  sanitarians,  was  within 
the  discretion  of  the  legislature,  and  its  prohibition 
was  therefore  binding  upon  city  governments. 

Having  become  satisfied  that  the  conditions  under 
which  the  milk  is  produced  make  it  an  unsafe  article 
for  consumption  by  its  citizens,  it  is  the  duty  of  a 
health  department  to  prevent  the  entrance  of  such 
milk  into  the  city.33     Most  milk  is  produced  outside 

83  Bellows  v.  Kaynor,  101  N.  E.  228  U.  S.  572;  Reid  v.  People  of 
181 ;  see  also  Adams  v.  Milwaukee,       Colorado,  187  U.  S.  137. 


PURE  FOOD  AND   DRUG   REGULATION  741 

of  the  municipality  in  which  it  is  consumed.  In  the 
Bellows  case  the  court  said : 34  ' l  It  is  unreasonable 
to  say  that  the  department  of  health,  in  exercising 
such  a  power,  renders  itself  amenable  to  the  charge  of 
exercising  an  extraterritorial  jurisdiction.  In  notify- 
ing the  creamery  company  not  to  include  the  plain- 
tiff's milk  in  its  shipments  to  the  city,  it  was  acting 
for  the  protection  of  the  inhabitants  of  the  city  of 
New  York,  and  therefore  for  local  interests.  There 
was  no  interference  with  the  plaintiff's  conduct  of  his 
farm  or  business,  except  as  he  proposed  to  supply 
milk  to  the  city  of  New  York;  there  was  simply  an 
embargo  laid  on  the  introduction,  within  the  city  of 
New  York,  of  any  milk  not  produced  by  him  under 
conditions  specified  by  the  department.  It  had  the 
right  to  exact  from  all  shippers  of  milk  a  compliance 
with  such  conditions  as  would  reasonably  tend  to  a 
pure  product  for  the  use  of  the  citizens  as  a  condition 
for  permitting  its  sale  in  the  city  of  New  York. ' ' 

Under  the  Minnesota  state  regulations  operators  of 
what  is  called  the  "Babcock  Test"  of  cream  were 
required  to  hold  licenses.  An  operator  who  did  not 
hold  a  license  undertook  to  restrain  the  enforcement 
of  the  law  by  bringing  an  action  of  injunction  to  pre- 
vent criminal  proceedings  being  instituted  against 
him.  The  case  was  carried  to  the  supreme  court 
which  said  that  injunction  proceedings  would  not  be 
entertained  unless  it  be  evident  that  the  prosecution 
involve  some  trespass  upon  property  or  the  invasion 
of  property  rights  which  would  cause  irreparable 
injury.343, 

s*  Bellows  v.  Raynor,  101  N.  E.  34aCobb    v.    French,    111    Minn. 

181.  429. 


742  PUBLIC   HEALTH   ADMINISTRATION 

§467.  Composition  of  the  product.  The  standard 
of  milk  may  be  fixed  so  as  to  prevent  the  addition  of 
water  or  coloring  matter.35  In  a  New  York  case  the 
milk  was  found  to  be  adulterated  and  so  condemned, 
because  it  contained  water,  though  it  was  not  shown 
that  the  water  was  harmful.36  An  ordinance  in  the 
city  of  Washington  requiring  three  and  one-half  per 
cent  of  butter  fat  was  not  considered  unreasonable  by 
the  court,  although  it  did  presume  an  unusual  amount 
of  care  in  the  selection  and  feeding  of  the  cattle.37  A 
Minnesota  ordinance  prohibiting  the  sale  of  cream 
which  contained  less  than  twenty  per  cent  fat  was 
upheld.37a  The  use  of  preservatives  in  milk  is  generally 
prohibited  on  the  ground  that  if  the  milk  is  properly 
produced  and  cared  for  it  will  require  no  preservative. 
The  legislative  power  was  held  to  be  absolute  in  impos- 
ing prohibition  of  such  preservatives.38  Admitting 
that  a  large  amount  of  boric  acid  in  milk  might  be 
harmful,  it  is  not  evident  that  a  small  quantity  would 
be  injurious,  though  that  small  quantity  might  be 
sufficient  to  prevent  putrefactive  changes  in  the  milk. 
Remembering  the  fact  that  bacteria  are  almost  sure 
to  get  into  the  milk  before  it  is  delivered  to  the  cus- 
tomers, some  dealers  have  been  accustomed  to  use  a 
small  percentage  of  formalin  or  boric  acid  to  prevent 
possible  changes.     The  New  York  court  upheld  this 

35  Commonwealth  v.  Wetherbee,  37a  State  v.  Crescent  Creamery 
153  Mass.  159,  26  N.  E.  114;  Com-  Co.,  83  Minn.  284,  54  L.  E.  A.  466. 
monwealth  v.  Sehaffner,  146  Mass.  38  state  v.  Schlenk>r,  112  la. 
512,  16  N.  E.  280;  St.  Louis  v.  642,  51  L.  E.  A.  347;  Common- 
Amel,  139  S.  W.  434.  wealth  v.  Gordon,  159  Mass.  8,  38 

36  People  v.    Chipperly,    101    N.  N.  E.  709. 
Y.  634. 

37  Wiegand  v.  Dist.  of  Columbia, 
22  App.  D.  C.  559. 


PURE   FOOD   AND    DRUG    REGULATION  743 

use  of  a  small  quantity  of  preservatives  in  People  v. 
Biesecker.39 

(This  same  question  comes  up  in  the  use  of  ben- 
zoate  of  soda  as  a  preservative  in  ketchup,  for 
example.  Some  sanitary  enthusiasts  would  have  the 
use  of  the  benzoate  absolutely  prohibited.  If  we  grant 
that  large  quantities  of  the  benzoate  are  injurious  to 
the  human  system,  it  by  no  means  follows  that  a  small 
amount,  used  as  preservative,  would  have  any  such 
action.  In  fact,  it  might  often  times  be  healthful  by 
restraining  the  action  of  putrefactive  germs  which  are 
so  common  in  the  intestinal  tract.  Its  harmfulness  in 
small  quantities  has  been  frequently  asserted,  but 
never  scientifically  demonstrated.  Some  tests  which 
seem  to  show  it  very  evidently  omit  to  take  into 
account  possible  psychological  influences.  Contrary 
to  a  frequent  assertion,  the  use  of  a  small  quantity  of 
the  benzoate  does  not  render  decayed  or  spoiled  tomato 
pulp  usable.  It  simply  prevents  further  changes.  On 
the  other  hand,  the  opponents  of  the  benzoate  for  use 
as  a  preservative  advocate  the  use  of  " natural' '  pre- 
servatives, such  as  spices;  and  experience  has  demon- 
strated that  putrid  tomato  pulp  may  be  rendered  quite 
acceptable  to  sensitive  palates  by  the  use  of  such 
spices,  and  its  true  character  is  not  easily  detected.) 

An  interesting  decision  relative  to  the  character  of 
milk  is  published  by  the  Department  of  Agriculture 
under  the  Food  and  Drugs  Act.40  The  case  came  up 
before  the  court  of  appeals,  District  of  Columbia.    The 

39  169  N.  Y.  53,  57  L.  E.  A.  F.  &  D.  1519,  I.  S.  14636b;  F.  &  D. 
178.  1520,  I.  S.  13439b;  similarly,  F.  & 

40  Notice  of  Judgment,  2516;  D.  1743,  I.  S.  17415b,  which  re- 
Dade  v.  United  States,  No.  2466,  lates  to  tomato  catsup  containing 
App.    D.    C,   Feb.    25,    1913.      See  yeasts  and  molds. 

also  F.  &  D.  No.  1357,  I.  S.  1459b ; 


744  PUBLIC   HEALTH   ADMINISTRATION 

contention  was  made  by  the  government  that  the  milk 
contained  the  colon  bacillus  and  streptococcus.  Since 
the  colon  bacillus  originates  in  and  is  a  normal  con- 
tent of  the  colon  of  all  warmblooded  animals,  and 
is  discharged  in  the  excreta,  if  it  be  found  in  the  milk 
it  is  an  evidence  of  fecal  contamination  of  the  milk, 
either  directly  or  indirectly.  If  directly,  it  comes 
from  carelessness  in  permitting  particles  of  manure  to 
get  into  the  milk  during  the  process  of  milking  or 
afterwards;  if  indirectly,  it  must  come  from  dust,  veg- 
etation, or  water,  none  of  which  have  any  reasonable 
excuse  for  being  present  in  the  milk.  Therefore,  it 
was  held  that  the  milk  containing  the  colon  bacillus 
was  adulterated  within  the  provisions  of  the  act. 
Again,  the  presence  of  the  streptococcus,  which  is  a 
germ  instrumental  in  putrefactive  changes,  is  of  itself 
an  evidence  that  the  milk  must  be  regarded  as  putrid. 
It  is  very  common  for  ordinances  today  to  specify  a 
maximum  bacterial  content  for  the  milk,  and  such 
ordinances  would  always  be  upheld  as  reasonable 
unless  the  number  be  arbitrarily  too  low. 

§  468.  Inspection.  In  order  to  safeguard  the  pro- 
duction of  milk  it  is  customary  for  ordinances  to 
require  licenses,  and  the  very  granting  of  the  license 
imposes  certain  restrictions  upon  milk  production. 
This  is  proper  use  of  police  power.41  Under  the  license, 
inspection  of  the  whole  process  of  milk  production  is 
possible.  But  the  department  is  not  dependent  alone 
upon  that  inspection;  it  must  have  the  right  to  secure 
samples  for  analysis.  Therefore,  ordinances  have  been 
upheld  which  require  the  dealer  to  give  not  exceeding 
a  half  pint 42  on  the  ground  that  the  property  value  is 

4i  Blazier  v.  Miller,  10  Hun,  435.      Ann.   577 ;    Commonwealth  v.  Car- 
42  State    v.    Dupaquier,    46    La.      ter,  132  Mass.  12. 


PURE   FOOD   AND    DRUG   REGULATION  745 

of  trifling  amount,  and  in  view  of  the  legitimacy  of  the 
purpose  it  does  not  violate  the  spirit  of  the  Constitu- 
tion. In  many  states  the  inspector  is  obliged  to  ten- 
der the  price  of  the  sample  taken.  An  ordinance  in 
the  city  of  Washington  required  the  dealer  to  sell 
upon  demand  "a  sample  sufficient  for  the  purpose  of 
analysis"  to  the  inspector.  The  inspector  asked  for 
less  than  a  pint.  The  dealer  refused  to  sell  less  than 
a  pint  as  he  sold  only  full  bottles,  and  that  was  the 
size  of  his  smallest  bottle.  The  court  upheld  the  dealer 
on  the  ground  of  reasonableness.43 

Under  the  general  powers  granted  by  rhe  state  the 
city  of  Asheville,  N.  C,  passed  an  ordinance  requiring 
dealers  to  take  out  licenses,  and  requiring  that  for 
such  licenses  the  dealers  pay  one  dollar  per  cow.  The 
money  so  provided  was  to  be  used  by  the  municipality 
in  the  payment  of  office  expenses  connected  with  the 
supervision  of  the  dairy  business,  and  the  needed 
inspections.  One  Nettles  refused  to  take  out  such 
license,  setting  forth  that  the  fee  charged  was  unneces- 
sarily large;  that  his  herd  was  outside  of  the  munici- 
pality; and  that  he  sold  to  only  one  customer,  and  that 
was  a  creamery.  The  court  held  that  the  ordinance 
was  valid.  To  permit  a  dealer  to  refuse  to  take  out 
a  license  on  account  of  the  size  of  the  fee  might  very 
seriously  interfere  with  the  operations  of  the  munici- 
pal authorities  for  the  preservation  of  the  public 
health.  If  the  fee  be  excessive  there  are  other  means 
open  for  the  dealer  for  relief.  (See  §  423.)  The 
powers  granted  by  the  state  to  the  city  are  intended 
to  protect  the  health  of  the  citizens.     The  fact  that 

4ri  Dist.    of    Columbia    v.    Garri- 
son, 25  App.  D.  C.  563. 


746  PUBLIC    HEALTH   ADMINISTRATION 

the  herd  of  dairy  cattle  is  outside  of  the  city  does  not 
lessen  the  necessity  for  inspection,  and  it  is  generally 
to  be  expected  that  the  cattle  will  be  outside  of  the 
city.  Inspection  of  the  cattle  and  surroundings  is  evi- 
dently safer  than  mere  inspection  of  the  milk;  but 
where  the  herd  is  far  removed  from  the  city  the  local 
officers  must  depend  chiefly  upon  the  inspection  of  the 
milk  itself.  The  fact  that  the  only  customer  of  the 
dairyman  was  a  creamery  did  not  in  the  least  lessen 
the  necessity  for  supervision  of  his  business.44 

§  469.  Confiscation.  Milk  which  is  below  standard 
may  still  have  a  commercial  value.  If  it  contain  less 
than  the  normal  proportion  of  butter  fat  it  might  be 
sold  properly  as  skimmed  milk;  but  when  detected  on 
sale  as  straight  milk  if  it  be  left  with  the  dealer  it 
would  simply  enable  him  to  continue  in  his  evasion  of 
the  law.  To  preserve  it  until  a  case  could  be  tried 
and  decided  would  be  expensive,  and  practically 
impossible.  Milk  which  contains  an  abnormal  amount 
of  bacteria  may  be  rendered  usable  sometimes  by  pas- 
teurization, or  it  may  be  used  in  certain  manufactur- 
ing processes  where  it  does  not  become  an  article  of 
consumption  as  food.  Such  milk,  moreover,  is  espe- 
cially dangerous  to  leave  in  the  possession  of  one  who 
has  already  sought  to  evade  the  requirements  of  sani- 
tary law.  Summary  destruction  is  therefore  demanded 
under  police  power,  and  such  destruction  has  been 
repeatedly  upheld  by  the  courts.46  Property  which  is 
in  itself  harmless,  but  which  has  been  put  to  an  unlaw- 
ful use  may  be  confiscated.    Thus  the  forfeiture  of  a 

44  Asheville  v.  Nettles,  80  S.  E.  Hun,  435;  Deems  v.  Mayor,  80  Md. 

236.  164;   Shivers  v.  Newton,  45  N.  J. 

46  Nelson    v.     Minneapolis,     112  L.  469;  Adams  v.  Milwaukee,  129 

Minn.    16;    Blazier    v.    Miller,    10  N.  W.  518. 


PURE  FOOD  AND  DRUG  REGULATION  747 

vessel  engaged  in  unlawful  oyster  fishing  was  upheld 
by  the  Supreme  Court  of  the  United  States.47  A  dealer 
who  seeks  to  evade  the  requirements  of  the  law,  and 
bring  milk  into  a  city  for  sale  contrary  to  the  require- 
ments, is  on  a  par  with  the  smuggler,  and  it  would 
seem  that  he  could  have  no  cause  to  complain  if  his 
merchandise  be  confiscated  as  a  penalty  for  his  law- 
breaking.  In  Adams  v.  Milwaukee48  the  claim  was 
made  that  the  ordinance  which  provided  for  the  con- 
fiscation and  destruction  of  property  was  a  violation 
of  the  Fourteenth  Amendment ;  but  the  Supreme  Court 
of  the  United  States  said:  "The  police  power  of  the 
state  must  be  declared  adequate  to  such  a  desired 
purpose.  It  is  a  remedy  made  necessary  by  plaintiff 
acting  in  disregard  of  the  other  provisions  of  the 
ordinance;  that  is,  failing  to  have  his  cows  tested  and 
their  milk  authenticated  as  prescribed.  The  city  was 
surely  not  required  to  let  the  milk  pass  into  consump- 
tion and  spread  its  possible  contagion.  *  *  * 
Criminal  pains  and  penalties  would  not  prevent  the 
milk  from  going  into  consumption.  To  stop  it  at  the 
boundaries  of  the  city  would  be  its  practical  destruc- 
tion. To  hold  it  there  to  await  judicial  proceedings 
against  it  would  be,  as  the  supreme  court  has  said,  to 
leave  it  at  the  depots  'reeking  and  rotting,  a  breeding 
place  for  pathogenic  bacteria  and  insects  during  the 
period  necessary  for  notice  to  the  owner  and  resort  to 
judicial  proceedings.'  We  agree  with  the  court  that 
the  destruction  of  the  milk  was  the  only  available  and 
efficient  penalty  for  the  violation  of  the  ordinance.  The 
case,  therefore,  comes  within  the  principle  of  the  cases 

«  Smith  v.  Maryland,  18  How.  48  228  U.  S.  572. 

71. 


748  PUBLIC  HEALTH  ADMINISTRATION 

we  have  cited  and  of  Lieberman  v.  Van  De  Carr.49  In 
other  words,  as  the  milk  might  be  prohibited  from 
being  sold,  at  the  discretion  of  the  board  of  health,  and 
even  prohibited  from  entering  the  city,50  a  violation 
of  the  conditions  upon  which  it  might  be  sold  involves 
as  a  penalty  its  destruction.  Plaintiff  sets  up  his 
beliefs  and  judgment  against  those  of  the  government 
and  attempts  to  defeat  its  regulations,  and  thereby 
makes  himself  and  his  property  a  violator  of  the  law. 
In  North  American  Storage  Co.  v.  Chicago 51  we  said, 
by  Mr.  Justice  Peckham,  that  food  which  is  not  fit  to 
be  eaten,  'if  kept  for  sale  or  in  danger  of  being  sold, 
is  itself  a  nuisance,  and  a  nuisance  of  the  most  dan- 
gerous kind,  involving,  as  it  does,  the  health,  if  not  the 
lives,  of  persons  who  may  eat  it. '  And  it  was  decided 
that  in  such  case  the  food  could  be  seized  and  de- 
stroyed, and  that  a  provision  for  a  hearing  before 
seizure  and  condemnation  was  not  necessary.  It  was 
also  decided  that  the  owner  of  the  food  had  his  remedy 
against  the  arbitrary  action  of  the  health  officers." 
The  executive  who  thus  seizes  and  destroys  such  an 
article  as  milk  must  therefore  be  sure  of  his  evidence, 
or  he  may  be  held  liable  for  trespass. 

§  470.  Poisonous  substances.  There  are  many 
articles  of  commerce  which  may  be  properly  restricted 
as  to  sale  because  of  their  essentially  dangerous  char- 
acter. Such  are  habit  producing  drugs,  or  articles 
containing  poisonous  substances.  Unless  clearly 
within  the  powers  granted  by  its  charter,  or  by  statute, 
a  city  would  not  have  the  authority  to  prohibit  the 

«  199  U.  S.  552.  51  211  U.  S.  306,  315. 

so  Beid    v.    People    of    Colorado, 
187  U.  S.  137. 


PURE  FOOD  AND  DRUG  REGULATION  749 

sale  of  such  articles  as  are  ordinary  subjects  of  com 
merce.  (§  256.)  The  state,  on  the  other  hand,  may 
regulate  or  prohibit  the  sale  of  such  articles.  The 
state  of  North  Dakota  passed  an  act  which  made  it 
unlawful  to  manufacture,  import,  distribute,  or  give 
away  snuff,  or  any  substitute  therefor.  This  act  was 
upheld  as  constitutional  by  the  supreme  court  of  the 
state.52  The  court  called  attention  to  the  fact  that 
although  the  United  States  Supreme  Court  held  in 
Austin  v.  Tennessee 53  that  cigarettes  or  tobacco  were 
not  so  much  of  a  nuisance  as  to  be  not  properly  objects 
of  interstate  commerce,  in  the  same  case  the  authority 
of  the  state  legislature  was  recognized  to  prohibit  the 
sale  of  cigarettes.  So  in  this  case  the  court  recognized 
that  the  tobacco  habit  is  uncleanly,  and  its  excessive 
use  is  injurious.  It  is  particularly  injurious  on  young 
persons.  Snuff  is  largely  used  between  the  cheek  and 
the  gum,  or  along  the  gums.  It  is  absorbed,  rather 
than  chewed.  This  form  of  tobacco  may  be  used  by 
boys,  when  they  would  not  use  tobacco  in  a  more  open 
manner.  Opium  may  easily  be  added  as  a  habit  pro- 
ducing adulterant.  The  court  further  recognized  the 
fact  that  local  paralysis  of  sensory  nerves  may  be 
produced  by  the  use  of  snuff  on  the  gums.  There 
seemed  to  the  court  sufficient  reason  to  justify  the 
legislation  in  question. 

52  State  v.  Olson,  144  N.  W.  R.  53  179  U.  S.  343. 

661. 


CHAPTER  XVm. 

INDUSTRIAL  REGULATION. 

§  480.  Questionable  legislation.  §  484.  Buildings. 

§  481.  Necessity    for    accurate  §  485.  Special  occupations. 

studies.  §  486.  Industrial    regulation 
§  482.  Increased   importance.  should  be  definite. 

§  483.  Hours  of  labor. 

§480.  Questionable  legislation.  There  is  perhaps 
too  great  a  tendency  in  legislation  today  to  interfere 
with  the  ordinary  lives  of  individuals.  The  agitation 
is  frequently  the  product  of  emotional  theorizers,  un- 
supported by  analytical  study  of  the  facts  involved. 
It  is  the  natural  result  of  organized  society.  Recog- 
nizing certain  truths,  one  class  of  citizens  secures  the 
enactment  of  laws  designed  to  remedy  specific  defects, 
not  realizing  that  in  correcting  those  defects  they  may 
work  even  greater  injury.  For  example,  it  is  mani- 
festly desirable  that  children  be  permitted  to  attend 
school,  and  that  they  should  not  be  unduly  ground 
down  by  the  monotony  of  labor  while  their  bodies  are 
developing.  But  a  law  prohibiting  child  labor,  not 
infrequently  results  in  driving  upon  the  street  those 
who  should  be  using  a  portion  of  their  time  at  least 
in  some  sort  of  work.  A  storekeeper,  we  will  say,  who 
desires  an  errand  boy  for  a  portion  of  the  time  might 
very  willingly  employ  such  a  one  out  of  school  hours, 
though  such  employment  may  be  prevented  by  the 
statute.     The  consequence  is  that  the  boy  grows  up 

750 


INDUSTRIAL  REGULATION  751 

with  a  feeling  of  irresponsibility,  and  a  repugnance 
to  all  forms  of  work.  Because  he  is  unoccupied  he  is 
very  likely  to  form  evil  associations  and  consequently 
evil  habits.  In  such  a  case  the  law  designed  to  protect 
and  benefit  the  boy  has  worked  a  lasting  injury.  In 
other  words,  laws  regulating  industrial  pursuits  need 
to  be  judiciously  drawn,  not  by  partisan  advocates,  but 
by  those  who  are  well  informed  in  the  principles  of 
law  and  in  the  sciences  of  sanitation  and  sociology 

§  481.  Necessity  for  accurate  studies.  In  many 
ways  industrial  occupations  are  important  to  study 
from  a  sanitary  standpoint.  Legislation  in  the  past 
has  been  chiefly  directed  to  the  commercial  side  of  the 
problem.  There  has  always  been  present  the  conflict 
between  capital  and  labor,  and  most  of  the  legislation 
has  arisen  from  this  conflict.  There  has  been  the 
attempt  to  guard  the  labor  from  oppression ;  and  there 
has  been  the  effort  to  secure  capital  against  the  unnec- 
essary demands  of  labor.  It  is  probable  that  in  the 
future  more  attention  will  be  devoted  to  the  sanitary 
side  of  the  subject.  Because  of  its  close  connection 
with  commercial  questions,  the  enforcement  of  all 
these  special  laws  has  been  in  the  past,  and  probably 
will  in  the  future  be  entrusted  to  some  other  agency 
than  the  health  department.  Until  very  recently  sani- 
tary data  have  not  been  used  in  the  legal  contests. 
Previously  sanitary  arguments  were  based  rather  upon 
general  statements  and  mere  opinions;  but  there  has 
been  a  growing  recognition  of  the  necessity  for  accu- 
rate studies.  It  is  just  such  studies  as  these  in  which 
the  health  department  should  assist  as  far  as  it  is  pos- 
sible to  determine  the  effect  of  poisons  upon  the  sys- 
tem, and  the  means  by  which  these  detrimental  influ- 


752  PUBLIC   HEALTH   ADMINISTRATION 

ences  may  be  mitigated  in  manufacture.  As  instances 
of  such  action  we  may  refer  to  the  poisonous  results 
of  match  making,  and  of  lead,  as  it  is  found  in  many 
lines  of  manufacture.  Then,  too,  there  are  the  studies 
relative  to  fatigue.  In  considering  the  hours  during 
which  persons  may  be  engaged  in  any  kind  of  labor, 
fatigue  is  a  most  important  element.  In  this 
investigation  of  fatigue,  one  must  discriminate  between 
workers  of  different  age  and  sex.  A  man  may  endure 
much  longer  confinement  of  labor  than  could  a  grow- 
ing youth;  and  while  a  woman's  constitution  may 
enable  her  with  less  fatigue  than  a  man  to  do  certain 
kinds  of  fine  mechanical  operation,  she  would  be  less 
able  to  stand  many  hours  of  heavy  toil.  Then,  too, 
there  must  be  considered  the  divergent  results  as  to 
the  labor  of  a  woman  in  ordinary  condition  and  one 
who  is  in  pregnancy.  There  is  the  difference  between 
considering  the  effect  upon  the  one  life  and  the  added 
result  upon  an  unborn  child.  Period  in  pregnancy 
must  also  be  considered. 

The  right  to  regulate  and  control  persons  engaged 
in  any  trade  or  occupation  that  affects  the  health  of 
the  people  is  no  longer  an  open  question.1  The  legis- 
lature may  regulate  in  such  manner  as  it  may  think 
proper  callings  that  are  related  to  public  health.2 
Formerly  the  most  that  was  attempted  under  these 
powers  was  the  regulation  of  such  callings  as  affected 
not  those  engaged  in  them,  but  neighbors,  or  custom- 
ers. In  the  prevention  of  industrial  diseases  the  pro- 
tective power  of  the  state  is  used  in  behalf  of  those 
who  are  engaged  in  doing  the  particular  kind  of  labor. 

i  Commonwealth  v.  Ward,  123  S.  2  State  v.  Smith,  135  S.  W.  465. 

W.  673, 


INDUSTRIAL  REGULATION  753 

It  is  here  that  the  scientific  facts  pertaining  to  the 
occupation  are  of  the  utmost  importance.  The  action 
of  the  state  in  these  cases  must  depend  upon  legisla- 
tive enactment,  best  by  the  state  legislature,  though 
sometimes  it  may  be  through  the  municipal  ordinance. 
This  whole  matter  is  very  well  set  forth  in  an  Illinois 
decision.3  The  court  said  that  statutes  to  prevent 
occupational  diseases  are  referable  to  the  police  power 
of  the  state.  Whether  the  state  legislature's  classi- 
fication has  a  reasonable  basis  is  a  judicial  question. 
The  legislature  may  classify  persons  or  occupations 
for  the  purpose  of  legislative  regulation  and  control, 
provided  such  classification  is  not  an  arbitrary  one, 
but  is  based  upon  some  substantial  difference, 
which  bears  a  proper  relationship  to  the  classification; 
and  the  question  whether  such  classification  is  reason- 
able or  arbitrary  is  a  judicial  one.  So  the  court  held 
that  the  act  of  1911  to  prohibit  the  use  of  emery  wheels 
or  emery  belts  in  any  basement  room  lying  wholly  or 
partly  beneath  the  ground  is  invalid,  as  making  an 
arbitrary  discrimination  without  regard  to  the  ques- 
tion of  ventilation  or  other .  sanitary  conditions.  The 
Michigan  court  held  that  the  law  requiring  emery 
wheels  to  be  provided  with  blowers  to  carry  away  the 
dust  was  valid,  saying  that  where,  under  our  institu- 
tions, the  validity  of  laws  must  be  finally  passed  upon 
by  the  court,  all  presumption  should  be  in  favor  of  the 
validity  of  legislative  action.  If  the  court  find  the 
plain  provisions  of  the  constitution  violated,  or  if  it 
can  be  said  that  the  act  is  not  within  the  rule  of  neces- 
sity, in  view  of  facts,  of  which  judicial  notice  may  be 
taken,  then  the  act  must  fall.    Otherwise  the  act  should 

3  People  v.  Schenck,  257  HI.  384. 


754  PUBLIC    HEALTH   ADMINISTRATION 

stand.4  It  must  be  remembered  that  the  dust  from 
emery  wheels  is  particularly  irritating  upon  the  res- 
piratory organs,  and  acts  as  a  predisposing  cause  of 
tuberculosis. 

§  482.  Increased  importance.  With  our  modern 
industrial  development  conditions  have  been  greatly 
altered,  and  dangers  are  intensified.  Before  the  days 
of  mechanical  sewing  we  had  simply  the  long  hours 
of  labor  with  the  needle,  often  with  imperfect  light,  in 
poorly  ventilated  rooms.  Now,  in  better  lighted  fac- 
tories (for  manufacturers  have  learned  that  good  light 
and  pure  air  are  essential  to  efficiency),  we  find  some 
machines  manipulated  by  a  single  operator  carrying 
twelve  needles,  so  that  the  operator  must  constantly 
watch  twelve  lines  of  sewing,  and  other  machines  set 
about  four  thousand  stitches  a  minute.  Many  machines 
working  in  the  same  room,  with  a  constant  vibration 
and  noise,  cause  such  a  confusion  as  of  itself  to  be 
trying  upon  one's  nerves,  even  when  not  employed  in 
labor.  But  when  we  consider  such  a  picture  as  that 
drawn  by  Miss  Goldmark  we  can  but  wonder  that 
anyone  is  able  to  do  good  work  under  such  conditions. 
"In  the  well  equipped  shops  each  girl  has  a  brilliant 
electric  light,  often  unshaded,  hanging  directly  in 
front  of  her  eyes  over  the  machine.  Her  attention 
cannot  relax  a  second  while  the  machine  runs  its 
deafening  course,  for  at  the  breaking  of  any  one  of 
the  twelve  gleaming  needles,  or  the  twelve  darting 
threads,  the  power  must  be  instantly  shut  off.  The 
roar  of  the  machines  is  so  great  that  one  can  hardly 
make  oneself  heard  by  shouting  to  the  person  who 
stands  beside  one. ' ' 5    Definite  facts  relative  to  degrees 

*  People  v.  Smith,  66  N.  W.  382.  5  Fatigue  and  Efficiency,  p.  54. 


INDUSTRIAL   REGULATION  755 

of  purity  of  atmosphere,  of  temperature,  and  of  light, 
need  to  be  recorded  as  bases  for  reasonable  legislation 
and  adjudication  of  enacted  statutes.  In  all  this  the 
health  department  should  act  more  as  an  adviser  than 
as  an  administrator  or  legislator.  At  present  these 
subjects  are  still  veiled  in  the  haze  of  considerable 
uncertainty.  Legislation  should  be  based,  not  upon 
uncertain  theories,  but  upon  established  facts. 

§  483.  Hours  of  labor.  The  cases  which  have  been 
adjudicated  relative  to  industrial  affairs  have  been 
largely  centered  upon  hours  of  labor.  It  must  be 
remembered  that  if  the  hours  of  labor  be  shortened 
it  will  naturally  result  in  the  employment  of  more 
laborers,  or  if  certain  classes  be  excluded  from  certain 
kinds  of  labor  it  will  give  greater  opportunity  for 
employment  of  those  not  belonging  to  the  excluded 
classes.  Practically  it  demands  that  the  wages  be 
increased;  in  other  words  the  expense  of  production 
must  increase.  There  is,  consequently,  a  dread  on  the 
part  of  the  community  against  increased  cost  of  living. 
Such  legislation  is  not  difficult  to  obtain,  because  poli- 
ticians recognize  the  importance  of  the  laboring  man's 
vote.  When  the  acts  come  before  the  courts  for  review 
the  question  to  be  decided  is  not  whether  they  are 
inherently  good  or  bad,  but  whether  the  legislature 
was  justified  in  its  conclusions  as  embodied  in  the  laws, 
and  whether  the  terms  of  the  act  comply  with  the 
forms  prescribed  by  the  constitution.  The  act  should 
be  in  such  form  that  with  the  least  possible  oppression 
for  others  it  will  accomplish  its  purpose  of  protection 
for  the  class  it  is  designed  to  aid.  "Necessity  is  the 
plea  of  tyrants."  It  is  a  plea  which  will  be  frequently 
made  in  attacking  labor  laws.    The  owner  of  a  cran- 


756  PUBLIC    HEALTH    ADMINISTRATION 

berry  bog  in  Massachusetts  made  this  plea  in  defense 
of  his  violation  of  the  law  prohibiting  Sunday  labor; 
the  berries  were  suddenly  ripening,  and  with  danger  of 
frost  he  feared  that  he  would  be  unable  to  harvest  his 
crop  unless  he  worked  on  Sunday.  The  supreme  court 
said:  " Without  going  over  the  evidence  in  detail,  it 
is  sufficient  to  say  that  there  was  no  extraordinary, 
sudden,  and  unexpected  emergency.  The  crop  was 
large,  it  is  true,  but  that  it  was  likely  to  be  large  had 
been  known  for  weeks.  The  weather  was  only  what 
might  have  been  expected.  The  substance  of  the 
testimony  was  simply  that  in  gathering  the  crop  it 
was  somewhat  less  expensive  and  more  convenient  to 
work  seven  days  in  the  week  rather  than  six.  That  is 
not  enough.  Such  testimony  falls  far  short  of  show- 
ing i necessity'  within  the  meaning  of  the  statute."6 

The  Mosaic  law  demanding  a  rest  of  one  day  in  seven 
was  not  an  arbitrary  requirement.  It  is  based  upon  a 
physiologic  necessity,  and  this  same  necessity  must  be 
remembered  in  all  laws  relative  to  time  spent  in  labor. 
In  the  first  Eitchie  case,7  decided  in  1895,  it  was 
declared  that  an  eight  hour  law  for  women  employed 
in  factories  was  not  sanctioned  under  police  power, 
and  that  there  was  no  "fair,  just,  and  reasonable  con- 
nection between  such  limitation  and  the  public  health, 
safety,  or  welfare,  proposed  to  be  secured  by  it." 
Three  years  later  a  case  was  decided  in  Utah,8  and 
sustained  by  the  federal  Supreme  Court,9  involving 
the  validity  of  a  mining  law  fixing  an  eight  hour  day 

6  Commonwealth    v.    White,    190  9  Holden    v.    Hardy,    169    U.    S. 
Mass.  578.                                                  366. 

7  Eitchie  v.  People,  155  111.  98. 
sState  v.  Holden,  14  Utah,  71, 

37  L.  E.  A.  103. 


INDUSTRIAL  REGULATION  757 

for  men  employed  in  the  mines  and  smelters.  The 
court  sustained  this  law  on  the  ground  that  the  men 
were  deprived  of  fresh  air  and  sunlight,  and  exposed 
to  foul  atmosphere  filled  with  noxious  gases  and  at 
high  temperature.  In  this  case  the  court  called  atten- 
tion to  the  fact  that  the  different  parts  of  the  state 
did  not  stand  upon  an  equality,  one  with  another,  in 
the  economic  sphere,  and  it  was  therefore  necessary 
that  the  state  should  act  as  an  arbiter.  "But  the  fact 
that  both  parties  are  of  full  age,  and  competent  to 
contract,  does  not  necessarily  deprive  the  state  of  the 
power  to  interfere  where  the  parties  do  not  stand  upon 
an  equality,  or  where  the  public  health  demands  that 
one  party  to  the  contract  shall  be  protected  against 
himself.  The  state  still  retains  an  interest  in  his  wel- 
fare, however  reckless  he  may  be.  The  whole  is  not 
greater  than  the  sum  of  all  the  parts,  and  when  the 
individual's  health,  safety,  and  welfare  are  sacrificed 
or  neglected  the  state  must  suffer. ' '  A  similar  case  10 
was  declared  invalid  in  Colorado,  though  it  has  since 
been  expressly  authorized  by  an  amendment  to  the 
state  constitution  adopted  in  1902. 

The  state  of  New  York  enacted  a  statute  limiting 
the  hours  of  labor  for  men  in  bakeries  to  ten  hours  in 
one  day,  or  sixty  hours  in  one  week,  overtime  being 
allowed  for  the  purpose  of  shortening  the  last  day  of 
the  week.  This  act,  when  attacked,  was  sustained  by 
the  New  York  court,  but  declared  unconstitutional  by 
the  Supreme  Court  at  Washington  in  1905.11  In  each 
of  these  cases  it  may  be  noticed  that  the  legislation 
was  secured  by  the  laboring  class,  while  the  attack 

J"  In  re  Morgan,  26  Col.  415,  47  n  Lochner  v.  New  York,  198  U. 

L.  K.  A.  52.  S.   45. 


758  PUBLIC    HEALTH   ADMINISTRATION 

was  made  upon  it  by  the  employers.  The  grounds  of 
the  attack  in  each  case  were  upon  the  protection  of 
the  right  of  contract  in  the  Fourteenth  Amendment  to 
the  federal  Constitution.  Similarly,  the  New  York  su- 
preme court  declared  unconstitutional  a  law  prohibit- 
ing the  labor  of  women  in  factories  between  the  hours 
of  9  P.  M.  and  6  A.  M.,  the  judge  saying,12  "I  find  noth- 
ing in  the  language  of  the  section  which  suggests  the 
purpose  of  promoting  health  except  as  it  might  be 
inferred  that  for  a  woman  to  work  during  the  forbid- 
den hours  of  the  night  would  be  unhealthf ul. ' '  A  ten- 
hour  law  for  women  in  Michigan  was  attacked  as  class 
legislation  because  a  different  class  of  workers  was 
omitted,  but  the  supreme  court  sustained  the  act  as  a 
valid  use  of  police  power.13  An  act  in  Pennsylvania 
limiting  the  hours  of  labor  for  women  was  upheld.14 
"A  prohibition  upon  unhealthy  practices,  whether 
inherently  so,  or  such  as  may  become  so  by  reason  of 
prolonged  and  exacting  physical  exertion,  which  is 
likely  to  result  in  enfeebled  or  diseased  bodies,  and 
thereby  directly  or  consequently  affecting  the  health, 
safety,  or  morals  of  the  community,  cannot,  in  any 
just  sense,  be  deemed  a  taking  or  an  appropriation  of 
property.  The  length  of  time  a  laborer  shall  be  sub- 
ject to  the  exhaustive  exertion  or  physical  labor  is  as 
clearly  within  legislative  control  as  is  the  government 
inspection  of  boilers,  machinery,  etc.,  to  avoid  acci- 
dents, or  of  the  sanitary  conditions  of  factories  and 
the  like  to  preserve  the  health  of  laborers."15  The 
court  of  appeals  in  New  York  said:   "In  the  interest 

12  People  v.  Williams,  189  N.  Y.  «  Commonwealth   v.    Beatty,    15 

131.        ,  Pa.  Sup.  Ct.  5. 

is  Withey   v.   Bloem,    163    Mich.  is  Commonwealth   v.   Beatty,    15 

419.  Pa.  Sup.  Ct.  5,  15. 


INDUSTRIAL  REGULATION  759 

of  public  health,  of  public  morals,  and  of  public  order, 
a  state  may  restrain  and  forbid  what  would  otherwise 
be  the  right  of  a  private  citizen.  *  *  *  It  may 
limit  the  hours  of  employment  of  adults  in  unhealthy 
work,  and  it  may  be  that  it  could  prohibit  the  per- 
formance of  excessive  physical  labor  in  all  callings."  16 
It  will  be  noted  that  the  Williams  case  made  no  dis- 
tinction as  to  character  of  work.  There  was  no  regard 
for  the  different  kinds  of  labor,  and  there  was  nothing 
in  the  statute  itself  to  show  that  such  a  law  was  rea- 
sonable and  just.  In  this  it  differs  from  the  first 
Ritchie  case,  in  which  the  apparent  defect  was  in  the 
presentation  of  evidence  to  show  that  a  law  was  in 
fact  reasonable.  Long  hours  of  labor  per  se  may  be 
harmful;  certain  kinds  of  labor  may  be  harmful;  long 
hours  at  harmful  labor  would  be  doubly  harmful.  In 
1910  the  Illinois  court  sustained  a  ten  hour  day  for 
women  employed  in  laundries  and  factories  in  what 
was  known  as  the  second  Ritchie  case.17  Three  years 
previous  a  law  in  Oregon  fixing  a  ten  hour  day  for 
women  employed  in  factories  and  laundries  had  been 
sustained  by  the  state  court,18  and  upon  appeal  to  the 
United  States  Court,  was  again  sustained  purely  upon 
sanitary  grounds.19  The  defense  of  this  law,  before 
the  federal  Court  by  Mr.  Louis  D.  Brandeis  of  Boston 
and  Josephine  Goldmark  of  New  York,  was  a  radical 
change  in  method  of  defense,  and  emphasizes  more 
strongly  than  any  other  similar  argument,  the  neces- 
sity for  a  basis  of  sanitary  fact  for  such  laws. 

is  People     v.      Orange      County  estate  v.  Muller,  48  Ore.   252. 

Road  Construction  Co.,  175  N.  Y.  ™  Muller  v.   Oregon,   208   U.    S. 

84.  412. 

it  Ritchie  &  Co.  v.  Wayman,  244 
111.  509. 


760  PUBLIC  HEALTH  ADMINISTRATION 

The  Illinois  ten  hour  woman's  law  was  attacked  on 
the  ground  that  it  included  hotels,  but  did  not  include 
boarding  houses.  Eecognizing  the  fact  that  such  dis- 
tinctions must  have  a  reasonable  basis,  the  court 
agreed  that  the  hours  in  a  hotel  might  be  much  more 
varied  than  they  would  reasonably  be  in  a  boarding 
house,  and  upheld  the  law,  remarking,  however,  that 
the  wisdom  of  the  law  was  not  a  question  for  the 
courts.20  The  law  was  also  held  to  include  nurses  in 
a  municipal  hospital.21  It  was  held  by  the  court,  in 
this  case,  that  although  the  hospital  was  used  for 
infectious  diseases,  it  was  conducted  by  the  city  in  its 
corporate  capacity.  In  this  the  court  seems  to  have 
gone  in  opposition  to  the  general  consensus  of  the 
bench,  which  seems  to  practically  agree  that  the  care 
of  infectious  diseases  is  a  governmental  matter,  and 
that  municipalities  are  not  liable  for  the  conduct  of 
such  hospitals.    (§413.) 

In  order  to  render  the  carrier  liable  under  the  fed- 
eral Hours  of  Service  Act  of  1907,  there  must  be  proof 
tending  to  show  a  direct  connection  between  the  work- 
ing overtime  and  the  happening  of  an  accident.  An 
accident  happening  within  a  few  minutes  of  the  close 
of  the  sixteen  hours  could  hardly  be  reasonably  due 
to  the  violation  of  the  act.22  When  several  employees 
are  kept  on  duty  beyond  the  specified  time  of  sixteen 
hours,  the  penalty  of  the  hours  of  service  act  of  1907 
is  incurred  for  the  detention  of  each  employee,  al- 
though occasioned  by  the  same  delay  of  the  train.23 

20  People  v.  Elerding,  254  111.  -  St.  Louis,  I.  M.  &  S.  Ry.  Co. 
579.                                                             v.  McWhirter,  229  U.  S.  265. 

21  People  v.  Chicago,  256  111.  23  Missouri,  K.  &  T.  Ry.  Co.  v. 
558.                                                                U.   S.,  231  U.  S.   112. 


INDUSTRIAL   REGULATION  761 

§  484.  Buildings.  A  crowded  room,  poorly  lighted 
and  unventilated,  is  not  conducive  to  good  work. 
Such  a  room  may  be  regarded  as  a  nuisance,  but,  as 
has  frequently  been  said,  nuisance  is  a  question  of 
fact,  not  purely  of  statement.  As  a  matter  of  fact  it 
might  be  possible  for  the  health  officer  to  enforce  better 
conditions  without  special  enactment.  However,  it 
is  customary  for  municipalities,  and  to  some  degree 
for  states,  to  enact  laws  regulating  the  construction  of 
buildings.  Such  laws  specify  material  of  construction, 
window  space  in  proportion  to  floor  space,  ventilation, 
plumbing,  etc.  The  act  incorporating  the  city  of  Pat- 
erson,  New  Jersey,  provides  that  the  health  depart- 
ment, for  the  preservation  and  promotion  of  the  health 
of  the  city,  shall  have  power  to  regulate  and  control 
the  manner  of  erecting  and  constructing  buildings  in 
the  city.  The  court  held  that  this  did  not  give  author- 
ity to  require  outside  walls  of  a  given  thickness.24 
Deviation  from  approved  plan  of  construction  is  not 
excused  by  the  permission  of  the  inspector  when  he 
had  no  authority  to  give  such  permission.25  When 
the  plans  for  plumbing  have  been  approved  by  a  local 
board,  the  owner  must  conform  thereto.26  A  law 
requiring  the  placing  of  water  closets  in  certain  build- 
ings is  a  valid  use  of  police  power.27  Although  the 
sanitary  code  may  not  have  provided  that  the  health 
department  shall  have  power  to  make  a  special  order 
as  to  ventilation  in  buildings,  when  in  a  condition  of 

2*  Hubbard  v.  Paterson,  45  N.  J.  27  Tenement     House     Dept.     v. 

L.  310.  Katie  Mosschen,  85  N.  Y.  S.  1148; 

25  Health  Department  New  affirmed,  72  N.  E.  321;  affirmed, 
York   v.    Hamm,    24   N.    Y.   Supp,  203  IT.  S.  583. 

730. 

26  Johnston  v.  Belmar,  13  Dick. 
354. 


762  PUBLIC   HEALTH   ADMINISTRATION 

danger  to  life  or  health,  such  power  has  been  recog- 
nized.28 

Very  closely  associated  with  the  sanitary  construc- 
tion of  factory  buildings  we  find  the  questions  relating 
to  private  houses,  and  particularly  those  which  involve 
the  plans  of  construction  and  the  management  of  apart- 
ment houses  and  tenements.  It  is  quite  as  important 
where  the  people  live  as  where  they  work.  In  fact,  it 
is  more  important,  for  it  involves  the  welfare  of  the 
entire  family,  and  the  children  are  more  susceptible 
to  detrimental  conditions  than  are  adults.  While  it  is 
permissible  that  a  tenement  shall  not  be  occupied  until 
it  has  received  the  certificate  of  the  board  of  health,  or 
other  sanitary  officer,  it  is  not  presumed  that  his  action 
will  be  arbitrary,  nor  that  his  authority  will  be  used 
for  purposes  of  profit  or  oppression.29  A  police  regu- 
lation relative  to  such  buildings  which  would  be  rea- 
sonable and  proper  in  a  metropolis  might  be  unreason- 
able when  applied  to  the  state  at  large.  If  the  require- 
ments be  made  impracticable  on  account  of  unneces- 
sary expense,  or  because  of  absence  of  facilities  (such 
as  a  requirement  that  they  be  connected  with  sewers 
where  there  are  no  sewers),  the  enactment  would  be 
considered  nul.  In  a  Wisconsin  case  a  law  making 
every  habitation  in  which  another  than  the  family  of 
the  proprietor  sleeps  a  boarding  or  lodging  house  was 
declared  unreasonable.30  In  the  same  case  it  was  held 
that  the  requirement  in  the  construction  of  tenement 
houses  which  called  for  a  width  of  six  feet  between 
lot  line  and  building  for  street  courts  was  unreason- 

zs  Health  Department  New  York  so  Bonnett  v.  Vallier,  116  N.  W. 

v.  Knoll,  70  N.  Y.  530.  885. 

29  Ex     parte     Stoltenberg,     132 
Pac.  841. 


INDUSTRIAL   REGULATION  763 

able  in  some  conditions  and  localities.  When  a  build- 
ing is  really  insanitary,  under  ordinances  so  provid- 
ing, it  may  be  ordered  vacated  without  previous  notice 
to  the  owner.31 

§485.  Special  occupations.  The  power  to  regulate 
the  sale  of  an  article  includes  the  power  to  require 
license  for  such  sale.32  In  a  like  manner  the  com- 
munity may  require  license  for  manufacture,  and  it 
may,  under  police  power,  specify  on  what  conditions 
the  license  shall  be  granted;  but  those  conditions  must 
be  reasonable.  Thus,  while  it  has  been  held  that  it  is 
proper  to  require  that  emery  wheels  and  belts  be 
equipped  with  blowers  to  carry  away  the  dust 33 
(§  481),  it  has  also  been  held  that  the  absolute  prohi- 
bition of  the  use  of  such  emery  wheels  or  belts  in  base- 
ments was  unreasonable.34 

From  time  to  time  there  have  been  efforts  to  frighten 
the  people  relative  to  the  danger  which  lurks  in  sweat- 
shop goods,  particularly  articles  of  clothing.  Although 
it  is  probable  that  these  dangers  are  infinitesimal  as 
compared  with  the  great  danger  for  the  workers  in 
these  shops,  it  is  very  proper  that  the  customers  refuse 
to  buy  such  merchandise.  It  is  the  purchaser 's  human 
duty  to  refuse  such  articles.  It  is  probably  true  that 
goods  may  be  made  and  sold  more  cheaply  by  the 
sweatshop,  but  it  is  at  the  expense  of  human  lives. 
If  so,  the  purchaser  is  particeps  criminis  in  the  sacri- 
fice. Laws  forbidding  such  manufacture  come  within 
the  proper  scope  of  police  power.35   Bakeries  are  fre- 

siEgan  v.   Health   Department,  33  People   v.    Smith,    66    N.    W. 

New  York,  45  N.  Y.  Supp.  325.  382. 

32  Gundling  v.  Chicago,  176  111.  34  People    v.    Schenck,    257    111. 

340;   Kinsley  v.   Chicago,    124   111.  384. 

359.  ss  State  v.  Hyman,  57  Atl.  6. 


764  PUBLIC   HEALTH   ADMINISTRATION 

quently  the  subject  of  such  restrictive  legislation.  Chi- 
cago passed  what  was  called  "the  bread  ordinance," 
regulating  the  size  of  the  loaf,  and  requiring  the  maker 
to  stick  his  mark  upon  the  loaf.  This  was  essentially 
not  a  health  measure,  but  purely  commercial,  and 
designed  to  prevent  bakers  from  defrauding  their  inno- 
cent customers.  This  was  attacked  on  several 
grounds,  but  was  upheld  by  the  court.36  Later  the  city 
passed  another  ordinance  requiring  bakers  to  take  out 
licenses,  and  making  certain  regulations  relative  to 
the  conduct  of  the  business,  among  them  being  a  pro- 
hibition of  the  use  of  basements  for  bakeries.  One  of 
the  grounds  upon  which  this  ordinance  was  attacked 
was  that  the  city  had  already  exhausted  its  legislative 
power  in  the  passage  of  the  bread  ordinance,  but  the 
court  overruled  the  objection,  and  held  that  the  city 
has  the  authority  under  police  power  to  make  such 
regulation  of  the  conduct  of  the  bakery  business  as 
seems  reasonable.37  Unfortunately  in  this  case  the 
court  did  not  specifically  approve  of  the  stipulations 
in  the  ordinance,  though  at  the  time  many  so  under- 
stood. The  ordinance  is  still  under  contest.  In  Wis- 
consin, however,  a  somewhat  similar  ordinance,  pro- 
hibiting basement  bakeries,  was  upheld.38 

Laundry  regulation  has  been  a  frequent  subject  for 
legislation,  and  municipal  ordinances  making  such 
regulation  in  the  interest  of  sanitation  have  been 
upheld  in  the  United  States  Supreme  Court,39  as  well 
as  by  many  state  courts.40  But  when  the  real  purpose 

36  Chicago  v.  Schmidinger,  243  39  Barbier  v.  Connolly,  113  U.  S. 
111.    167.  27. 

37  Chicago  v.  Drogasawacz,  256  *o  Ex  re  San  Chung,  105  Pac. 
111.  34.  609 ;  The  King  v.  Tong  Lee,  4  Ha. 

38Benz  v.  Kremer,  142  Wis.  7.        335;    Territory  v.   Ah   Chong,    17 


INDUSTRIAL  REGULATION  765 

of  the  enactment  did  not  seem  to  be  sanitation,  but 
rather  that  it  was  directed  against  a  particular  class 
of  workers,  namely,  the  Chinese,  and  gave  to  the  city 
authorities  an  arbitrary  power  in  the  matter,  the  ordi- 
nance was  held  to  be  a  violation  of  the  Fourteenth 
Amendment.41 

Perhaps  no  case  relating  to  the  sanitary  problems  of 
manufacture  has  been  more  severely,  and  even  bit- 
terly, criticised  than  that  of  In  re  Jacobs,42  in  New 
York.  An  act  was  passed  "to  improve  the  public 
health"  which  prohibited  the  "manufacture  of  cigars 
or  preparations  of  tobacco  in  any  form,  on  any  floor,  or 
in  any  part  of  any  floor  in  any  tenement  house,  if  such 
floor  or  any  part  of  such  floor  is  by  any  person  occupied 
as  a  home  or  residence  for  the  purpose  of  living,  sleep- 
ing, cooking,  or  doing  any  household  work  therein. " 
This  act  was  declared  unconstitutional,  the  court  say- 
ing that  it  is  plain  that  this  is  not  a  health  law,  and 
that  it  has  no  relation  whatever  to  the  public  health. 
Professor  Freund  makes  this  comment  upon  the  deci- 
sion:43 "Assuming  the  sanitary  object  to  have  been 
colorable,  there  was  no  valid  ground  to  support  the 
act,  and  the  chief  interest  of  the  case  must  be  found 
in  the  fact  that  the  court  undertook  to  override  the 
legislative  judgment,  which  conceivably  might  have 
been  based  upon  sufficient  evidence." 

Without  questioning  the  statement  that  in  its  form 
the  act  was  not  clearly  a  sanitary  regulation,  as  it 
claimed  to  be,  it  does  seem  that  the  opinion  of  the 
court  merited  severe  criticism  from  the  sanitarian's 

Ha.  331;   District  of  Columbia  v.  «  98  N.  Y.  98. 

Shong  Lee,  38  Was.  Law,  460.  *a  Police  Power,   151. 

tiYick  Wo  v.  Hopkins,  118  U. 
S.  356. 


766  PUBLIC    HEALTH   ADMINISTRATION 

point  of  view.  It  may  well  be  that  the  merits  of  the 
underlying  proposition  were  not  properly  put  before 
the  court.  The  court  said:  "It  has  never  been  said, 
so  far  as  we  can  learn  [of  tobacco]  *  *  *  that  its 
preparation  and  manufacture  into  cigars  were  dan- 
gerous to  the  public  health.  We  are  not  aware,  and 
are  not  able  to  learn,  that  tobacco  is  even  injurious  to 
the  health  of  those  who  deal  in  it,  or  are  engaged  in 
its  production  or  manufacture."  There  has  been  con- 
siderable evidence  as  to  the  harmfulness  of  tobacco 
upon  the  human  system.  Specific  evidence  should 
have  been  placed  before  the  court  showing  definitely 
the  effect  of  tobacco  manufacture  upon  those  engaged 
in  the  trade,  and  upon  those  closely  associated  with 
the  industry. 

§486.  Industrial  regulation  should  be  definite. 
Granting  the  right  of  the  state,  or  municipality,  to 
enact  regulations  governing  the  conduct  of  industries, 
for  the  purpose  of  saving  life  or  health,  it  follows  that 
the  laws  passed  should  be  definite  and  should  not 
delegate  legislative  power  to  executive  officers.  This 
is  illustrated  by  the  case  of  Schaezlein  v.  Cabaniss,44 
in  which  it  was  held  that,  though  it  was  within  the 
police  power  of  the  state  to  require  safety  appliances 
in  factories,  it  was  not  proper  to  leave  the  selection 
of  the  particular  form  of  appliance  to  the  inspector. 
A  nuisance  may  be  ordered  abated,  but  it  is  not  within 
the  authority  of  the  executive  to  determine  just  how 
it  is  to  be  abated.45 

44  135   Cal.   466. 

45  Belmont     v.     New     England 
Brick  Co.,  190  Mass.  442. 


CHAPTER  XIX 

SCHOOL    INSPECTION 

§  490.  Characteristics     of    medical  §  493.  Medical  problems  in  educa- 

inspection  of  schools.  tion. 

§  491.  Injurious   effects    in    school  §  494.  Medical  inspection  normally 

life.  educational. 

§  492.  Authority  of  health  depart-  §  495.  School  nurse. 

ment. 

§490.  Characteristics  of  medical  inspection  of 
schools.  The  systematic  inspection  of  schools  is  of 
comparatively  recent  origin,  and  in  consequence  has 
given  rise  to  little  or  no  litigation  in  this  country. 
There  can  be  no  reasonable  question  as  to  the  author- 
ity of  a  health  department  to  make  such  inspection  of 
the  pupils  in  the  school  as  may  be  necessary  to  detect 
unrecognized  cases  of  infectious  diseases,  and  to  insti- 
tute such  measures  as  may  be  necessary  for  the  control 
of  the  same.  But  this  is  only  a  small  portion  of  the 
work  of  medical  school  inspection.  Gulick  states  that 
only  about  four  per  cent  of  the  cases  needing  attention 
were  excluded  for  infectious  disease.  While  the  work 
of  a  medical  school  inspector  admittedly  pertains  to 
hygiene,  a  large  proportion  of  it  is  much  more  closely 
associated  with  the  normal  work  of  the  school  than 
with  that  of  the  ordinary  administration  of  a  health 
department. 

§491.  Injurious  effects  in  school  life.  It  is  neces- 
sary for  the  state  to  educate  the  children,  but  it  is 

767 


768  PUBLIC    HEALTH   ADMINISTRATION 

found  in  the  first  place  that  as  the  schools  have  been 
conducted  a  very  large  proportion  of  the  scholars  are 
more  or  less  permanently  injured  as  the  result  of  the 
hours  spent  thus  in  the  public  school.  This  of  itself 
shows  that  there  is  something  wrong.  Secondly,  it  is 
recognized  that  individual  instruction  is  a  practical 
impossibility  according  to  our  system.  The  conse- 
quence is  that  either  the  more  able  scholars  are  held 
back  by  the  dullards  or  else  they  will  set  the  pace  and 
the  dullards  will  be  obliged  to  go  halting  along,  drop- 
ping back  in  their  work  year  after  year,  thus  occupy- 
ing more  time  than  even  they  need.  Further,  where 
scholars  attend  irregularly,  the  progress  made  in 
studies  is  retarded  for  the  class.  If,  therefore,  the 
scholars  are  obliged  to  be  frequently  absent  on  account 
of  slight  illnesses,  it  means  that  the  state  is  actually 
paying  much  more  for  the  maintenance  of  schools  than 
is  properly  necessary.  The  time  spent  by  each  scholar 
in  school  is  abnormally  lengthened;  more  schoolroom 
is  therefore  needed;  more  teachers  need  to  be  em- 
ployed; and  in  every  way  the  school  expenses  are 
increased.  If  this  overexpense  can  be  lessened  by  dif- 
ferent management  it  is  clearly  the  duty  of  the  com- 
munity to  try  to  effect  this  saving.  Investigation 
shows  that  a  very  frequent  cause  of  backwardness  on 
the  part  of  scholars  is  due  to  defects  of  eyesight  or  of 
hearing,  though  neither  the  scholar,  his  parents,  nor 
the  teacher  may  have  suspected  it.  The  child  is  con- 
sidered dull  of  comprehension,  and  he  comes  to  regard 
himself  as  less  bright  than  his  fellows.  Never  having 
seen  distinctly,  he  does  not  realize  that  others  see  bet- 
ter than  he ;  or,  not  having  heard  normally,  he  fails  to 
realize  that  he  loses  the  distinguishing  marks  of  audi- 


SCHOOL  INSPECTION  769 

ble  sounds.  Enlarged  tonsils  and  the  associated 
adenoids  are  frequent  causes  of  deafness,  and  through 
their  influence  on  respiration  they  weaken  the  entire 
system.  Not  only  so,  but  they  serve  apparently  as  gar- 
dens in  which  pathogenic  bacteria  thrive. 

Many  of  these  physical  defects  might  be  detected  by 
non-medical  observers.  It  takes  but  very  little  train- 
ing to  discover  by  the  use  of  Snellen's  test  type  that 
a  scholar  has  defective  vision.  It  may  take  much  more 
skill  to  discover  the  exact  conditions.  Anyone  may 
find  decayed  teeth,  but  not  everybody  appreciates  how 
important  good  teeth  may  be  for  the  health  of  the 
child.  Nor  do  they  realize  the  distinction  between  first 
and  second  teeth.  It  takes  the  trained  scientific  mind 
to  discover  the  cause  of  many  physical  defects,  even 
though  that  cause  may  be  found  in  that  school  itself. 
Eecent  studies  on  the  subject  of  fatigue  show  that  the 
relative  periods  of  time  devoted  to  study  and  to  play 
are  very  important  factors.  Temperature  of  school 
room  and  supply  of  fresh  air — these  are  proper  sub- 
jects for  medical  study.  Those  of  us  who  think  back 
upon  the  long  hours  spent  in  overheated  and  poorly 
ventilated  school  rooms  long  ago  can  but  wonder  that 
we  learned  as  much  as  we  did;  and  the  blackboards 
placed  in  dark  corners,  or  between  windows,  often- 
times with  glazed  surface,  make  our  eyes  ache  even 
yet. 

§  492.  Authority  of  health  department.  All  sanitary 
authority  over  schools  should  reside  solely  in  the 
health  department.  It  has  been  the  custom  in  many 
places  in  the  past  for  schools  to  readmit  pupils  after 
absence  from  infectious  disease  with,  at  the  most,  the 
certificate  of  the  attending  physician.  More  frequently 


770  PUBLIC    HEALTH   ADMINISTRATION 

no  medical  evidence  was  requested.  Experience  dem- 
onstrates that  it  is  not  safe  for  the  school  authorities 
to  depend  upon  the  certificates  of  private  practi- 
tioners. It  opens  the  way  for  errors  due  either  to  the 
ignorance  of  the  physician  or  to  his  willingness  to 
accommodate  his  patrons.  These  certificates  should 
clearly  be  sent  to  the  health  department  which  will  be 
better  able  to  estimate  their  true  value  and  issue  per- 
mits to  return  to  school  when  conditions  seem  safe. 
The  same  may  be  said  relative  to  certificates  of  vac- 
cination. Some  years  ago  the  writer  was  engaged  in 
examining  the  pupils  of  a  certain  school  exposed  to 
smallpox.  Each  scholar  was  obliged  to  produce  a  cer- 
tificate of  vaccination.  Incidentally  it  was  learned 
that  one  physician  who  did  not  believe  in  vaccination 
was  going  through  the  form  of  the  operation  and  issu- 
ing certificates  thereon,  using  no  other  virus  than 
hydrant  water.  It  is  not  probable  that  the  ordinary 
school  authorities  would  detect  such  a  fraud. 

Although  the  sanitary  authority  should  properly 
reside  in  the  health  department,  its  authority  is  purely 
sanitary.  Assuming,  without  deciding,  that  the  Indi- 
ana State  Board  of  Health  has  authority  to  condemn 
a  school  building  on  purely  sanitary  grounds,  and  pre- 
vent its  use  in  its  then  present  condition,  such  an 
assumption  does  not  imply  also  a  presumption  that 
the  condemnation  carries  with  it  a  requirement  for 
the  destruction  of  the  building.  At  most,  the  State 
Board  of  Health  can  require  that  the  building  be  made 
sanitary.  Whether  this  shall  be  done  by  repairing  the 
old  structure,  or  by  building  a  new  one  in  its  place,  is 
a  question  for  the  proper  local  authorities  to  deter- 


SCHOOL   INSPECTION  771 

mine.1  Although  a  building  may  be  ordered  destroyed 
when  it  is  a  nuisance  in  esse  which  cannot  otherwise 
be  abated,  as  by  disinfection,  that  is  a  question  of  fact 
to  be  determined,2  and  the  finding  of  the  sanitary 
board  is  not  sufficient  of  itself  to  determine  that  fact.3 
It  must  be  remembered  that  a  school  building  would 
not  be  likely  to  become  a  nuisance  per  se.  Even  if  it 
were  no  longer  possible  to  use  it  for  school  purposes 
its  mere  existence  might  not  be  dangerous  to  health. 
It  might,  perhaps,  be  put  to  other  uses.  The  health 
authorities  have  authority  to  require  that  the  building 
be  sanitary,  but  it  is  very  questionable  how  far  they 
may  go  in  determining  just  how  the  disability  shall  be 
removed. 

§493.  Medical  problems  in  education.  Every  suc- 
cessful school  management  must  make  a  study  of  the 
individual  scholars  in  order  to  get  the  best  results  in 
education.  If  the  scholars,  passing  through  a  certain 
room  uniformly  show  the  acquirement  of  certain 
defects  it  indicates  that  there  is  something  wrong  in 
the  arrangement  of  the  room  or  of  the  school  work. 
The  most  perfect  results  as  to  the  study  of  the  scholars 
may  reasonably  be  expected  from  a  physician  trained 
in  medicine,  experienced  as  a  teacher,  and  with  a 
practical  knowledge  of  psychology  and  of  physical 
development.  It  seems,  therefore,  that  under  ordinary 
circumstances  unless  there  be  some  special  provision 
in  the  constitution  or  statutes  of  the  state,  any  school 
board  would  have  the  authority  to  employ  such  an 

i  Coal  Creek  Township  v.  Lew-  Chester  Fire  Assurance  Co.,  15  Ha. 

andowski,    84   Ind.    346;    see   also  704;    Ahana  v.    Insurance   Co.    of 

Pasadena  School  District  v.  Pasa-  North  America,  15  Ha.  636;  SingB 

dena,  134  Pac.  985.  v.  Joliet,  86  N.  E.  663. 

2  Kwong  Lee  Yuen  Co.  v.  Man-  3  Cole  v.  Kegler,  19  N.  W.  843 


772  PUBLIC   HEALTH  ADMINISTRATION 

inspector,  just  as  much  as  it  has  authority  to  employ 
janitors,  engineers)  or  teachers.  Such  an  inspector 
may  very  properly  devote  a  certain  amount  of  time,  if 
available,  to  the  work  of  teaching.  It  has  been  found 
that  the  grammar  schools  have  been  of  the  greatest 
aid  in  disseminating  sanitary  knowledge  and  in  inau- 
gurating the  proper  system  of  management.  When 
Sir  Eupert  Boyce  visited  the  West  Indies,  making  a 
governmental  investigation  relative  to  yellow  fever, 
he  found  the  children  in  the  grade  schools  becoming 
experienced  entomologists.  A  little  girl  showed  him  a 
fine  sketch  of  the  larva  of  the  stegomyia  mosquito 
which  she  had  made.  The  scholars  were  enthusiastic 
in  their  search  for  the  breeding  places  of  the  pests,  and 
were  expert  in  detecting  violations  of  the  sanitary 
regulations.  In  a  similar  way  modern  sanitary  ideas 
are  being  carried  in  our  own  country  from  the  schools 
to  the  parent.  In  order  that  the  scholars  may  get  such 
education  properly  someone  must  be  employed  who 
has  that  special  education.  Then,  too,  there  is  that 
most  important  factor  in  the  prevention  of  sickness, 
poverty,  and  dependency — sexual  education,  which 
may  properly  be  given  by  medical  school  inspectors. 
To  remove  all  possible  question  as  to  the  authority  of 
school  boards  thus  to  establish  medical  supervision, 
state  statutes  should  be  enacted  clearly  giving  this 
authority. 

The  education  of  a  child  means  much  more  than 
merely  communicating  to  it  the  contents  of  textbooks. 
But  even  if  the  term  were  to  be  so  limited  some  dis- 
cretion must  be  used  by  the  teacher  in  determining 
the  amount  of  study  each  child  is  capable  of.  The 
physical  and  mental  powers  of  the  individual  are  so 


SCHOOL  INSPECTION  773 

interdependent  that  no  system  of  education,  although 
designed  solely  to  develop  mentality,  would  be  com- 
plete which  ignored  bodily  health.  And  this  is  pecu- 
liarly true  of  children  whose  immaturity  renders  their 
mental  efforts  largely  dependent  upon  physical  condi- 
tion. It  seems  that  school  authorities  and  teachers 
coming  in  contact  with  the  children  should  have  an 
accurate  knowledge  of  each  child's  physical  condition, 
for  the  benefit  of  the  individual  child,  for  the  protec- 
tion of  the  other  children  with  reference  to  communi- 
cable diseases  and  conditions,  and  to  permit  an  intel- 
ligent grading  of  the  pupils.  For  these  reasons  the 
Minnesota  court  upheld  the  authority  of  school  boards, 
as  a  part  of  their  regular  educational  supervision,  to 
employ  suitable  persons  to  ascertain  the  physical  con- 
dition of  pupils.4 

§  494.  Medical  inspection  normally  educational. 
Although  very  much  of  the  work  of  the  medical  officer 
in  the  schools  is  in  the  line  ultimately  of  the  preserva- 
tion of  the  public  health,  it  must  be  remembered  that 
essentially  it  is  educational,  and  in  every  way  it  is 
directly  connected  with  the  proper  work  of  the  school. 
It  seems  to  us,  therefore,  that  he  should  be  a  school 
officer,  rather  than  an  officer  in  the  health  depart- 
ment. It  is  the  duty  of  a  physician  in  private  prac- 
tice, when  he  discovers  a  case  of  infectious  disease,  to 
report  the  same  to  the  department  of  health.  This 
same  duty  devolves  upon  the  school  physician,  and  the 
care  of  the  infectious  disease  prevention  must  rest 
with  the  department  of  health.  Private  physicians  or 
school  physicians,  private  families  and  school  boards 

*  State    ex    rel.    Sehomberg    v. 
Brown,  128  N.  W.  294. 


774  PUBLIC   HEALTH   ADMINISTRATION 

— all  are  subject  to  the  regulations  issued  by  the  health 
department.  The  school  physician  must  therefore 
work  in  harmony  with  the  health  department.  So  long 
as  he  promptly  reports  all  cases  of  infectious  disease, 
and  assists  the  department  in  tracing  up  sources  of 
infection,  it  is  immaterial  whether  he  draw  his  pay 
and  receive  orders  from  the  school  board  or  the  sani- 
tary department.  It  is  equally  important  for  the 
school  board  and  the  health  department  to  ferret  out 
the  source  of  every  epidemic.  Their  interests  being 
common,  there  is  no  reason  why  there  should  be  the 
slightest  antagonism. 

§  495.  School  nurse.  It  is  customary  when  the 
school  inspector  discovers  that  a  pupil  has  defective 
teeth,  enlarged  tonsils,  adenoids,  eyes  needing  spec- 
tacles, ankylostomiasis,  or  pediculosis,  that  a  card  be 
issued  to  the  pupil  setting  forth  the  defect  and  refer- 
ring the  case  to  the  family  physician.  Having  dis- 
covered that  very  frequently,  owing  either  to  the  igno- 
rance or  carelessness  of  the  parents,  these  cases  do 
not  receive  attention,  many  schools  have  employed  the 
school  nurse  to  visit  the  homes  of  the  children.  All 
of  this  work  requires  a  high  degree  of  tact.  But  the 
school  nurse  has  proven  the  most  efficient  aid  "just 
incidentally."  The  nurse  is  able  to  instruct  many 
mothers  in  the  care  of  infants;  she  makes  suggestions 
for  improving  the  family  menu  without  increasing  its 
cost;  she  aids  the  family  to  secure  better  hygienic  sur- 
rounding; and  she  helps  to  make  the  immigrants  desir- 
able American  citizens.  As  to  the  legal  authority  of  a 
school  board  in  the  absence  of  statutory  regulation  to 
employ  such  a  nurse  there  may  be  some  question.  Her 
work  is  educational  in  character,  and  authority  should 


SCHOOL  INSPECTION  775 

be  expressly  granted  by  statutory  enactment.  The 
work  of  the  school  is  to  make  good  citizens,  fitted  for 
their  civic  responsibilities.  Unfortunately  many  of 
our  citizens  never  have  come  in  contact  with  our  school 
system.  They  have  had  their  schooling  under  foreign 
ideals,  and  come  to  this  country  when  fully  grown. 
They  need,  and  their  families  need,  the  helpfulness  of 
our  educational  aid.  This  assistance  can  be  given  bet- 
ter through  the  school  nurse  than  by  any  other  present 
agency. 

Although  it  is  apparently  within  the  normal 
work  of  a  school  to  supervise  medical  inspection 
whenever  the  school  authorities  fail  to  act,  it  is  proper 
that  the  local  health  administration  should  establish 
such  a  service.  Under  the  school  management  the 
inspector  is  expected  to  make  a  thorough  examination 
and  show  all  defects.  Under  the  health  administra- 
tion the  chief  force  of  the  inspection  must  be  devoted 
to  discovering  evidence  of  infectious  disease,  deter- 
mining upon  exclusions  from  school  for  such  cause, 
and  deciding  when  individual  pupils  may  re-enter. 


CHAPTER  XX 


EUGENICS 


§  500.  What    is    eugenics?  §  507.  Sterilization. 

§  501.  Eugenics  positive.  §  508.  Court  decisions. 

§  502.  Cast  universal.  §  509.  Eeasonable    precautions. 

§  503.  Mendel's  Law.  §  510.  Galton's  Law  of  Begression. 

§  504.  Like   characters    in   parents  §  511.  Eugenics  versus  low  infant 

and  children  not  necessa-  mortality. 

rily  hereditary.  §  512.  Legislation    based    on    biol- 
§  505.  Disease  not  hereditary.  ogy. 

§  506.  Ante-nuptial     examinations. 

§  500.  What  is  eugenics?  Though  not  strictly  a 
part  of  regular  health  administration,  the  subject  of 
eugenics  is  sufficiently  closely  allied  to  warrant  con- 
sideration here.  The  science  of  eugenics  is  still  in  its 
formative  stage.  The  name  was  suggested  by  Dr. 
Francis  Galton  (a  cousin  of  Charles  Darwin).  That 
grand  old  man  in  science  originated  many  movements, 
and  this  was  the  culmination  of  his  scientific  career. 
The  object  of  eugenics  is  the  improvement  of  the 
human  race.  It  must  be  based  upon  an  accurate  knowl- 
edge of  the  laws  of  heredity.  Most  of  our  knowledge 
of  heredity  is  of  necessity  derived  from  a  study  of 
the  development  of  plants  and  animals.  The  laws  of 
nature  are  universal.  The  laws  of  heredity  are  prac- 
tically the  same,  whether  we  consider  the  ancestry  of 
a  pea  or  a  mouse,  a  chicken,  a  sheep,  or  a  human 
being. 

776 


EUGENICS  777 

§501.  Eugenics  positive.  Eugenics  is  a  positive 
science;  it  is  the  positive  application  of  known  facts 
to  produce  a  better  progeny.  The  negative  phase  must 
of  necessity  be  kept  in  mind,  but  it  should  not  be  em- 
phasized. Unfortunately,  enthusiastic  sociologists 
and  embryo  philanthropists  have  magnified  the  nega- 
tive phase  until  it  has  become,  in  many  minds,  synony- 
mous with  eugenics.  This  is  greatly  to  be  regretted, 
and  the  results  are  of  questionable  character. 

The  chief  aid  in  eugenics  must  be  education.  This 
education  may  be  imparted  in  the  schools,  by  general 
lectures,  by  books,  and  by  periodicals.  It  must  con- 
sist in  the  clear  statement  of  the  laws  of  heredity  with 
their  application  to  human  beings.  Legislation  can 
have  but  very  slight  application.  It  is  true  that 
laws  have  been  proposed  to  increase  the  birth  rate, 
as  by  giving  pensions  to  mothers.  The  trouble  is  that 
this  tends  to  increase  the  birth  rate  at  the  expense 
of  quality.  Quality,  not  quantity,  is  the  aim  of  eugen- 
ics. It  costs  no  more  to  raise  a  good  horse,  a  valuable 
dog,  or  a  blooded  cow,  than  it  does  to  raise  stock  of 
very  little  value.  The  ultimate  result  of  breeding 
scrub  stock  is  a  loss  financially.  A  man  who  uses  lit- 
tle potatoes  for  seed  may  get  a  large  crop,  but  they 
are  only  good  for  hog  feed.  The  same  rules  apply  to 
human  beings. 

§  502.  Caste  universal.  Though  to  some  degree  op- 
posed to  the  ordinary  American  idea,  caste  is  universal 
in  nature.  Eugenics  has  for  its  object  the  increase 
in  the  size  of  the  upper  castes  and  the  elimination,  as 
far  as  possible,  of  the  lower  grades.  This  classifica- 
tion must  be  based  upon  intrinsic  worth,  not  upon  the 
mere  accidents  of  society,  nor  upon  financial  ratings. 


778  PUBLIC    HEALTH   ADMINISTRATION 

The  chief  elements  to  be  considered  are  physical 
strength  and  health,  and  mental  power.  A  strong 
mind  in  a  weak  body  is  hampered  in  its  operation. 
In  fact,  so  dependent  is  the  brain  npon  physical  health 
that  it  is  easily  wrecked  by  bodily  weakness. 

§  503.  Mendel's  Law.  As  we  have  stated,  eugenics 
is  still  in  the  formative  stage.  An  enormous  amount 
of  work  has  recently  been  done,  both  in  the  general 
study  of  heredity  and  in  the  recording  of  the  traits  of 
human  families.  In  general  biological  investigations 
certain  laws  have  been  evolved.  These  studies  have 
been  both  inductive  and  deductive.  Facts  have  been 
observed,  theories  formed  and  put  to  test  by  direct 
experimentation.  The  most  important  discovery  was 
probably  that  of  Mendel's  Law.  The  Abbe  Mendel, 
in  the  garden  of  a  monastery  at  Briinn,  laboriously 
tried  the  crossing  of  different  kinds  of  peas.  He  found 
that  where  a  wrinkled  pea  was  crossed  with  a  plump 
smooth  variety,  the  resulting  hybrid  would  show  only 
the  smooth,  plump  character.  Permitting  these  peas 
to  self -fertilize,  in  the  next  generation  he  found  that 
practically  one  quarter  would  be  wrinkled;  one  quar- 
ter would  be  plump  and  would  breed  true ;  the  remain- 
ing half,  though  plump,  would  have  the  hybrid  char- 
acteristics, and  in  subsequent  generations  would  con- 
tinue to  split  into  the  three  varieties.  The  wrinkled 
peas  were  of  pure  heredity,  that  is,  they  would  always 
breed  true.  He  called  the  plumpness  a  dominant  char- 
acter, and  the  wrinkledness  a  recessive  character,  be- 
cause it  does  not  appear  in  the  hybrid.  It  must  be 
remembered  that  though  it  does  not  appear,  the 
wrinkled  character  is  still  present  in  the  hybrid  round 
pea.     It  will  be  noted  that  we  have  here  opposing 


EUGENICS  779 

characters,  rather  than  a  degree  of  development  of  one 
character.  This  division  of  characters  in  progeny  is 
called  Mendel's  Law  of  Dominance. 

The  divisions  of  characters  is  found  to  depend  upon 
the  mathematical  distribution  within  the  germ  cells  of 
the  character  carrying  elements  from  the  two  parents. 
This  mathematical  grouping  is  spoken  of  as  Mendel's 
Law  of  Segregation. 

More  critically  examined,  it  is  found  that  the  oppos- 
ing characteristic  is  really  due  to  the  absence  of  some 
element  in  one  parent.  Chlorophyl  was  absent  in  one 
of  Baur's  plants.     (See  page  782.) 

Mendel's  observations  were  published  in  1865.  But, 
owing  to  the  greater  attention  inspired  by  Darwin's 
"Origin  of  Species,"  they  attracted  little  notice.  In 
1900  three  observers  simultaneously — Hugo  de  Vries 
in  Holland,  Correns  in  Germany,  and  Tschermark  in 
Austria — rediscovered  Mendel's  Law,  and  the  Abbe's 
publication  was  brought  to  light.  Since  1900  thou- 
sands of  investigations  have  been  made  demonstrating 
the  truth  of  Mendel 's  Law  of  Dominance,  and  Mendel- 
ism  may  be  taken  as  a  strong  evidence  that  a  character 
is  truly  hereditary. 

§  504.  Like  characters  in  parents  and  children  not 
necessarily  hereditary.  Many  observers  without  close 
scientific  training  have  mistaken  the  recurrence  of 
parental  characters  in  children  as  evidence  of  hered- 
ity. In  fact,  such  recurrence  is  very  frequently  the 
result  of  environment.  Environment  includes  sur- 
roundings and  education.  The  parent's  example  has 
much  to  do  with  forming  the  character  of  the  child. 

Professor  Davenport,1  in  charge  of  the  eugenics  lab- 

i  Heredity    in    Relation    to    Eu- 
genics, p.   157. 


780  PUBLIC   HEALTH   ADMINISTRATION 

oratory  at  Cold  Harbor,  publishes  family  records 
showing  splenic  enlargement,  dependent  upon  hered- 
ity; but  he  neglects  to  eliminate  other  possible  factors. 
Now,  enlargement  of  the  spleen  is  very  commonly 
caused  by  malarial  infection,  so  that  Eoss,  for  exam- 
ple, uses  splenic  enlargement  as  an  index  to  the  per- 
centage of  malarial  infection  in  a  community.  If, 
therefore,  these  children  mentioned  by  Davenport 
were  living  in  a  malarial  country,  the  same  cause 
which  produced  enlargement  in  the  parents  probably 
produced  it  in  their  offspring,  without  any  reference 
whatever  to  heredity.  This  one  example  is  mentioned 
simply  to  show  the  necessity  of  care  in  drawing  con- 
clusions. 

§  505.  Disease  not  hereditary.  It  may  be  stated  as 
a  general  fact  that  disease  is  seldom,  or  never,  in- 
herited. A  child  may  be  born  with  disease,  and  the 
disease,  therefore,  be  congenital:  but  it  is  not  heredi- 
tary unless  transmitted  from  parent  to  child  through 
the  germinal  cell.  Physical  defects  are  distinct  from 
disease,  and  may  be  transmitted  through  heredity. 
This  distinction  is  important.  A  character  in  a  child 
may  not  be  strictly  hereditary,  though  it  may  depend 
upon  some  inherited  defect. 

In  efforts  at  legislation  relative  to  eugenics  a  most 
serious  error  has  frequently  been  made  in  attempting 
to  limit  the  production  of  crime  by  the  act  of  steriliza- 
tion. Contrary  to  common  ideas  we  have  no  evidence 
that  crime,  or  the  criminal  tendency,  is  transmitted 
by  heredity.  There  are  family  records  showing  crim- 
inals in  generation  after  generation.  Generally  those 
same  individuals  show  other  weaknesses,  many  of 
them  being  of  imperfect  mental  development.     Now 


EUGENICS        (  781 

such  family  records  do  not  clearly  distinguish  between 
the  heredity  of  crime  and  the  dependence  of  crime 
upon  physical  defects;  and  particularly,  they  fail  to 
eliminate  the  possible  influence  of  environment.  The 
fact  that  a  man's  father,  or  grandfather,  committed  a 
certain  crime  and  that  he  himself  was  guilty  of  a 
similar  offence  is  no  evidence  that  the  crime  was 
hereditary.  The  second  offence  may  have  been  due  to 
the  suggestive  influence  of  the  first,  or,  they  may  have 
originated  from  similar  causes.  It  must  be  remem- 
bered that  morality  is  a  relative  rather  than  an  abso- 
lute standard.  That  which  is  a  crime  in  one  country, 
or  age,  has  been  perfectly  allowable  in  others.  That  a 
man  should  marry  his  own  sister  is  highly  repugnant 
to  us,  though  to  the  ancient  Assyrians  it  seemed  per- 
fectly proper.  All  of  our  studies  seem  to  show  that 
criminality  is  chiefly  dependent  upon  environment,  and 
particularly  upon  education. 

It  is  to  be  noted  and  regretted  that  most  laws  rela- 
tive to  eugenics  have  originated  among  sociologists, 
rather  than  biologists,  and  they  have  been  stimulated 
more  by  emotion  than  by  science.  We  have  little  or  no 
evidence  to  show  that  from  a  biological  standpoint 
there  is  any  objection  to  the  intermarriage  of  people  of 
different  races.  On  the  contrary,  such  union  has  some- 
times produced  highly  desirable  results.  The  Arau- 
canian  Indians  of  Chile,  the  only  aboriginal  nation  in 
America  which  never  was  conquered  by  Europeans  in 
war,  when  intermarried  with  the  most  sturdy  Span- 
ish immigrants  from  the  Basque  provinces,  have  pro- 
duced a  strong  people.  So  the  union  of  Spaniard  and 
Aztec  has  produced  some  of  the  leaders  in  the  Mexican 
nation.    Nevertheless,  we  early  find  laws  in  this  coun- 


782  PUBLIC    HEALTH   ADMINISTRATION 

try  prohibiting  such  mixed  marriages.  Thus,  North 
Carolina  in  1715  passed  an  act  forbidding  the  mar- 
riage of  whites  with  negroes,  mulattoes,  or  Indians, 
under  a  penalty  of  fifty  pounds,  and  providing  pun- 
ishment for  clergymen  performing  such  marriage  cere- 
monies. Maryland,  in  1692,  passed  an  act  against  the 
marriage  or  promiscuous  sexual  relations  of  whites 
and  negroes  or  other  slaves.  In  Massachusetts,  in 
1692,  the  marriage  of  a  white  person  with  a  negro, 
Indian,  or  mulatto  was  forbidden.2  Because  such  laws 
are  based  purely  upon  emotional  standards,  they  are 
outside  of  the  domain  of  public  health. 

§  506.  Ante-nuptial  examinations.  It  is  very  proper 
that  parties  intending  marriage  should  pass  a  physical 
examination  and  present,  each  to  the  other,  evidence 
of  sound  health.  Though  disease  itself  may  not  be 
transmitted  by  heredity,  it  may  often  be  communi- 
cated from  person  to  person;  and  its  presence  may 
cause  a  weakened  physical  condition  which  will  show 
itself  as  a  defect  in  future  generations.  Defects  are  by 
nature  to  a  degree  self  limiting.  The  alcoholic  parent 
may  beget  healthy  children,  but  family  histories  show 
that  with  continued  debauchery  of  parent  the  children 
become  progressively  less  rugged  in  constitution  and 
finally  later  pregnancies  result  in  abortion.  In  Darbi- 
shire's  experiments  with  peas,  according  to  Mendel's 
Law,  he  found  that  the  recessive  pea  evidently  had  a 
smaller  degree  of  vitality,  and  vacant  spaces  in  pods 
corresponded  to  the  numbers  of  wrinkled  peas  lacking. 
So  Baur,  the  German  botanist,  found  a  variegated 
snap-dragon,    which   when    self-pollenated,    produced 

2  Indian     Slavery     in      Colonial 
Times,  Lauber,  p.  253. 


EUGENICS  783 

two  variegated  plants  to  one  green.  This  was  appar- 
ently an  example  of  Mendelism  with  the  omission  of 
the  chlorophyl  free  specimens.  More  careful  examina- 
tion showed  that  the  missing  plant  germinated  but  did 
not  develop.  These  illustrations  have  their  bearing 
upon  ante-nuptial  physical  examinations.  Too  fre- 
quently those  most  deserving  the  bar  of  condemnation 
will  be  able  to  find  physicians  sufficiently  careless  or 
mercenary  to  furnish  a  satisfactory  certificate.  At  the 
most,  these  examinations  simply  protect  the  contract- 
ing individuals  from  direct  infection,  especially  from 
venereal  diseases.  Because  gonorrhea  is  a  frequent 
cause  of  sterility  this  may  slightly  protect  the  birth 
rate;  but  in  addition  the  results  of  such  precaution 
will  be  negligible  for  subsequent  generations.  It  is 
possibly  questionable  whether  the  requirement  of  ante- 
nuptial examinations  by  law  will  be  effective  for 
eugenic  good. 

Experience  has  demonstrated  that  the  fact  of  mak- 
ing marriage  difficult  has  little  influence  upon  the  birth 
rate.  This  is  shown  in  France,  Spain,.and  Latin  Amer- 
ica, where  owing  to  the  legal,  or  church  demands  mar- 
riage is  frequently  omitted.  In  a  like  manner,  if  the 
law  requires  that  each  individual  pass  a  physical  ex- 
amination before  marriage,  it  is  to  be  expected  that 
those  who  fail  thus  to  pass  will  indulge  in  illicit  inter- 
course. The  effect  here  would  be  to  preserve  the  pur- 
ity of  pure  blood,  and  the  unfit  would  be  largely 
limited  to  their  own  class.  The  natural  result  would 
be  to  intensify  the  distinction  between  the  two  classes, 
with  such  an  intensification  of  defectiveness  as  to 
favor  natural  self  limitation  among  the  defectives. 

Laws  demanding  medical  ante-nuptial  examinations 


784  PUBLIC    HEALTH   ADMINISTRATION 

may  very  easily  overstep  the  reasonable  legal  boun- 
daries. January  20,  1914,  Circuit  Judge  F.  GL  Esch- 
weisler  of  Milwaukee  gave  an  opinion  upon  the  Wis- 
consin eugenic  marriage  law,  holding  it  unconstitu- 
tional because,  in  the  first  place,  the  fee  prescribed 
($3.00)  was  too  small  to  insure  a  thorough  examina- 
tion. He  held  that  the  law  would  require  the  Wasser- 
man  test  for  syphilis,  and  if  it  be  not  made,  a  physician 
giving  a  clear  bill  of  health  might  be  liable  for  per- 
jury. He  held,  further,  that  the  law  was  unconstitu- 
tional because  it  conflicted  with  religious  liberty  in 
that  it  tended  to  halt  marriages.  It  is  interesting  to 
note  that  the  effect  of  the  law  actually  has  been  to 
substitute  a  civil  contract  for  religious  marriage.  The 
state  supreme  court  has  since  upheld  the  main  features 
of  the  statute. 

From  the  eugenic  standpoint  it  is  more  important 
to  examine  into  the  family  record,  than  it  is  to  examine 
the  persons  who  are  intending  to  be  married.  This 
point  is  well  recognized  among  breeders  of  horses  and 
cattle.  The  individual  may  not  show  serious  defects 
which  may  be  discovered  by  an  investigation  of  the 
history  of  the  previous  generations,  especially  includ- 
ing the  grandparents  and  the  uncles  and  aunts  of 
the  parties  to  be  married.  Further,  it  is  not  the 
absolute  character  of  each  individual  which  is  alone 
important.  The  question,  from  a  eugenic  standpoint, 
is,  what  will  be  the  natural  result  in  the  next  two  gen- 
erations. A  may  not  be  a  proper  person  to  marry  B, 
though  the  union  of  A  and  C  may  be  highly  commend- 
able; B  should  not  marry  A,  but  B  and  D  may  make, 
from  the  eugenic  point  of  view,  an  ideal  combination. 
All  of  this  simply  shows  that  the  subject  must  be  cov- 


EUGENICS  785 

ered  by  education,  rather  than  by  legal  enactment  and 
enforcement. 

Another  suggestion  has  been  made  by  La  Eeine 
Helen  Baker,3  which  is  at  least  worthy  of  considera- 
tion. From  the  eugenic  standpoint  it  must  be  ad- 
mitted that  many  illegitimate  children  are  compara- 
tively of  high  grade.  Physically  and  intellectually 
they  may  represent  the  very  best  of  blood.  That  such 
children  should  be  stamped  from  the  moment  of  birth 
with  the  mark  of  shame  is  to  put  environmental  in- 
fluences at  work  to  drag  them  into  the  criminal  class. 
They  are  not  to  be  blamed  by  society  for  the  sins  of 
their  parents.  Were  such  children  placed  upon  an 
equality  before  the  law  with  those  born  in  wedlock  it 
would  assist  in  removing  the  ban  of  society  which  is 
now  placed  upon  the  innocent,  and  it  is  not  impossible 
that  such  a  course  would  go  far  towards  limiting  il- 
licit intercourse. 

§  507.  Sterilization.  Several  states  have  recently 
passed  laws  providing  for  the  legal  sterilization  of 
criminals,  imbeciles,  idiots,  and  other  mental  defec- 
tive's. If  criminality  be  not  transmissible  by  heredity, 
such  sterilization  has  no  right  for  consideration  in 
eugenics.  With  the  possible  use  of  sterilization  as  a 
punishment  under  criminal  law,  we  have  no  concern. 
Criminals  and  mental  defectives  should  not  be  in- 
cluded in  the  same  sterilization  law.  We  shall  there- 
fore omit  further  consideration  of  the  sterilization  of 
criminals  from  our  discussion,  and  confine  ourselves  to 
sterilization  as  a  possible  eugenic  aid.  There  is  no 
question  as  to  the  fact  that  mental  degeneracy  is  trail  s- 

3  Eaee      Improvement       (1912), 
Chap.  IV. 


786  PUBLIC   HEALTH   ADMINISTRATION 

missible  by  heredity.  Because  such  individuals  are 
attractive  only  to  their  own  class,  if  permitted  freely 
to  commingle,  the  tendency  is  to  intensify  the  defects. 
As  previously  suggested,  defectiveness  is  to  a  degree 
self-eliminating.  In  other  words,  to  a  degree  the  de- 
fect tends  to  cure  itself.  However,  the  most  of  these 
defectives  become  public  charges,  and  society  has  a 
right  to  defend  itself  from  this  expense.  In  the  Jour- 
nal of  Criminal  Law  and  Criminology  for  September, 
1913,  Mr.  Charles  A.  Boston  published  a  protest 
against  the  laws  authorizing  the  sterilization  of  crimi- 
nals and  imbeciles.  He  failed  to  distinguish  between 
those  cases  in  which  heredity  plays  an  undoubted  part 
and  those  in  which  the  hereditary  influence  is  slight  or 
indirect.  He  speaks  of  undesirable  citizens,  and  by 
way  of  ridicule,  suggests  that  the  over-rich  are  "  un- 
desirable citizens,"  and  therefore  should  be  sterilized. 
The  over- rich,  however,  are  not  "undesirable  citizens " 
in  the  sense  that  they  are  public  charges.  They  do  not 
themselves  enter  almshouses  or  insane  asylums  at  the 
expense  of  the  community.  Though  they  may  prey 
upon  the  individuals  in  a  state,  the  state,  as  a  state, 
runs  no  risk  of  being  made  financially  reponsible  for 
their  care  and  keep. 

§  508.  Court  decisions.  There  have  been  but  three 
decisions  upon  the  constitutionality  of  sterilization 
laws.  In  State  v.  Feilan  the  supreme  court  of  the  state 
of  Washington  held4  that  the  Washington  statute 
authorizing  vasectomy  upon  a  person  convicted  of 
rape  is  not  a  cruel  punishment,  and  it  therefore  re- 
fused to  annul  the  act  of  the  legislature.  This  being 
a  decision  in  criminal  law,  it  has  no  interest  for  us. 

*26  Pae.  E.  75. 


EUGENICS  787 

As  applied  to  an  epileptic  woman  who  was  an  inmate 
of  a  state  institution,  it  was  held  that  the  New  Jersey- 
statute  in  question  was  based  upon  a  classification 
that  bore  no  reasonable  relation  to  the  object  of  such 
police  regulation,  and  hence  denied  to  the  individuals 
of  the  class  so  selected  the  equal  protection  of  the  laws 
guaranteed  by  the  Fourteenth  Amendment  to  the  Con- 
stitution of  the  United  States.5 

While  these  forms  have  been  in  the  printer's  hands 
news  comes  from  Keokuk,  Iowa,  that  in  the  United 
States  District  Court,  held  there  June  24,  1914,  Judge 
Smith  McPherson  pronounced  the  Iowa  vasectomy,  or 
sterilization  law  unconstitutional,  and  in  his  opinion 
Judges  Walter  I.  Smith,  United  States  Circuit  Judge 
of  the  eighth  district,  and  John  C.  Pollock,  District 
Judge  for  Kansas,  concurred.  It  seems  that  the  prison- 
ers in  the  state  institutions  united  to  test  the  law, 
and  Rudolph  Davis,  a  prisoner  in  the  state  peniten- 
tiary, applied  for  an  injunction  to  prevent  the  mem- 
bers of  the  board  of  parole,  the  warden,  and  physician 
of  the  penitentiary  from  performing  or  causing  to  be 
performed  this  operation  in  compliance  with  the  terms 
of  the  law.  Judge  McPherson  granted  a  temporary  in- 
junction which  is  now  made  permanent.  In  part  he 
said:  "Our  conclusion  is  that  the  infliction  of  this 
penalty  is  in  violation  of  the  Constitution  which  pro- 
vides that  cruel  and  unusual  punishment  shall  not  be 
inflicted.  The  punishment  prescribed  is  of  course  to 
follow  the  man  during  the  balance  of  his  life.  The 
physical  suffering  may  not  be  so  great,  but  that  is  not 
the  only  test  of  cruel  punishment;  the  humiliation,  the 

s  Smith  v.  Examiners  of  Feeble- 
minded, N.  J.  Supreme  Ct.,  Nov. 
18,   1913. 


788  PUBLIC   HEALTH   ADMINISTRATION 

degradation,  the  mental  suffering  are  always  present 
and  known  to  all  the  public,  and  will  follow  him  where- 
soever he  may  go.  This  belongs  to  the  dark  ages." 
The  Court  recognized  the  fact  that  it  is  desirable  that 
certain  classes  of  persons,  degenerates,  should  beget 
no  children;  but  from  the  telegraphic  report  before  us 
it  appears  that  the  eugenic  character  of  the  law  is  not 
apparent  in  the  case  of  criminals,  and  that  the  opera- 
tion must  be  considered  purely  ps  a  punishment.  Ap- 
parently the  decision  in  this  case  is  more  reasonable 
than  that  in  the  Feilan  case,  and  unless  it  be  set  aside 
by  the  Supreme  Court  it  will  effectually  dispose  of  the 
attempted  sterilization  of  criminals. 

§  509.  Reasonable  precautions.  Under  the  police 
power  of  the  state  it  might  be  proper  for  the  legisla- 
ture to  pass  a  law  providing  for  the  sterilization  of 
mental  defectives  where  it  is  probable  that  their 
progeny  will  become  public  charges.  It  seems  reason- 
able, however,  that  certain  safeguards  for  the  individ- 
ual should  be  provided  to  prevent  excessive  activities. 
It  is  not  sufficient  that  the  decision  be  left  as  according 
to  the  Indiana  statute,  to  two  surgeons  and  a  phy- 
sician. The  proper  judges  in  such  matters  should  have 
a  very  wide  experience  and  education.  At  least  one 
of  them  should  be  thoroughly  versed  in  biology.  It 
might  be  well  if  it  could  be  provided  that  the  final  de- 
cision should  be  in  some  form  of  court  action,  and  that 
the  patient  might  be  represented  by  proper  counsel. 
"Without  such  precautions,  it  might  be  considered  that 
the  law  violates  the  Fourteenth  Amendment  to  the  fed- 
eral Constitution. 

It  may  be  well  questioned  whether  or  not  the  scien- 
tific basis  is  yet  ready  for  such  radical  action  as  com- 


EUGENICS  789 

pulsory  sterilization  acts.  It  has  not  yet  been  accur- 
ately determined  how  much  degeneracy  may  be  the  re- 
sult of  heredity,  and  how  much  is  the  product  of  envir- 
onment. A  great  deal  of  the  degeneracy  found  in  the 
southern  states,  which  through  the  last  century  was 
supposed  to  be  hereditary,  has  recently  been  demon- 
strated to  be  dependent  upon  the  hook-worm  disease, 
and  easily  curable.  Though  there  may  be  a  heritable 
condition  which  makes  an  individual  liable  to  become 
insane,  it  takes  some  other  exciting  cause  to  throw 
the  mental  operations  off  the  track.  Insanity  is  not  a 
necessary  result  of  the  heritable  character  in  many,  if 
not  all  of  these  cases;  and,  in  fact,  that  very  heritable 
character  may  be  essentially  a  mark  of  superiority. 
Segregation  works  no  permanent  harm,  and  if  future 
progress  in  science  is  able  to  remove  the  stain  the  in- 
dividual may  be  accorded  full  liberty.  Perhaps  no 
other  condition  is  more  distinctly  cacogenic  than  epi- 
lepsy. Not  only  do  we  have  the  unfortunate  convul- 
sions, but  with  them  we  have  a  progressively  weak 
mentality,  with  dangerous  insanity  as  a  sequel  in  many 
cases.  These  individuals  are  frequently  prolific.  Their 
progeny  become  public  charges  in  large  numbers.  It 
may  well  be  that  the  sterilization  of  epileptic  males 
may  be  therapeutically  helpful,  and  the  state  may  be 
warranted  by  eugenic  reasons  in  demanding  the  steril- 
ization of  all  epileptic  males  who  are  not  strictly  segre- 
gated. However,  most  of  the  sterilization  laws  are 
operable  only  upon  inmates  of  public  institutions, 
rather  than  upon  those  who  are  at  liberty ;  and  from  a 
eugenic  standpoint  such  segregated  individuals  do  not 
need  sterilization. 

The  power  of  procreation  is  a  defense  for  a  woman 


7-90  PUBLIC    HEALTH   ADMINISTRATION 

with  defective  mentality.  So  long  as  she  is  in  an  in- 
stitution sterilization  should  be  useless.  If  not,  con- 
ception indicates  a  degree  of  mismanagement  which 
the  operation  would  intensify,  rather  than  correct. 
Such  a  weakminded  woman  at  liberty,  if  possessing 
the  procreative  faculty,  is  thereby  protected  to  a  de- 
gree against  misuse  by  unprincipled  individuals  who 
might  be  detected  in  their  nefarious  acts  if  she  con- 
ceived. Moreover,  any  sterilizing  operation  upon 
the  woman  is  more  dangerous,  and  more  difficult,  than 
upon  the  man.  It  is  therefore  very  questionable 
whether  any  law  providing  for  such  compulsory  steril 
ization  of  women,  simply  to  prevent  the  bearing  of 
degenerate  children,  ever  will  prove  to  be  reasonable 
or  necessary. 

The  state  has  a  perfect  right  to  prohibit  the  mar- 
riage of  such  persons  as  are  likely  to  increase  the  num- 
ber of  state  charges.  In  Gould  v.  Gould  6  the  court 
said  that  among  the  rights  of  equality  guaranteed  un- 
der the  Constitution  we  find  that  one  is  marriage,  "but 
it  is  a  right  that  can  only  be  exercised  under  such  rea- 
sonable conditions  as  the  legislature  may  see  fit  to 
impose.  It  is  not  possessed  by  those  below  a  certain 
age.  It  is  denied  to  those  who  stand  within  certain 
degrees  of  kinship.  *  *  *  One  mode  of  guard- 
ing against  the  perpetuation  of  epilepsy  obviously  is 
to  forbid  sexual  intercourse  with  those  afflicted  with  it, 
and  to  preclude  such  opportunities  for  sexual  inter- 
course as  marriage  furnishes.  To  impose  such  a  re- 
striction upon  the  right  to  contract  marriage,  if  not 
intrinsically  unreasonable,  is  no  invasion  of  the  equal- 
ity of  all  men  before  the  law,  if  it  applies  equally  to 

e  78  Conn.  242,  61  Atl.  604. 


EUGENICS  791 

all,  under  the  same  circumstances,  who  belong  to  a 
certain  class  of  persons,  which  class  can  reasonably 
be  regarded  as  one  requiring  special  legislation,  either 
for  their  protection  or  for  the  protection  from  them  of 
the  community  at  large.  It  cannot  be  pronounced  by 
the  judiciary  to  be  intrinsically  unreasonable  if  it 
should  be  regarded  as  a  determination  by  the  general 
assembly  that  a  law  of  this  kind  is  necessary  for  the 
preservation  of  public  health,  and  if  there  are  sub- 
stantial grounds  for  believing  that  such  determina- 
tion is  supported  by  facts  upon  which  it  is  apparent 
that  it  was  based." 

§  510.  Galton's  Law  of  regression.  Dr.  Galton  found 
that  there  is  a  constant  tendency  in  any  race  for  re- 
gression toward  the  mean.  In  other  words,  if  the  par- 
ents be  shorter  than  the  average,  their  children  will  be 
taller  than  the  parents;  or,  if  the  parents  be  taller  than 
the  average,  the  children  will  be  shorter  than  the 
parents.  This  is  called  Galton's  Law  of  Eegression. 
The  question  may  be  asked  whether  this  law  of  re- 
gression would  not  show  that  the  children  of  mental 
defectives  would  have  a  like  tendency  to  return  toward 
the  normal.  It  must  be  remembered  that  mental  de- 
generacy is  not  a  matter  of  degree  so  much  as  a  rep- 
resentation of  a  positive  loss  of  a  character,  compar- 
able with  Baur's  snap-dragon,  deficient  in  chlorophyl. 
If  the  parents  do  not  possess  a  character  they  cannot 
transmit  it.  If  both  parents,  therefore,  be  degenerates, 
their  children  would  be  degenerate  also,  possibly  with 
a  few  exceptions,  in  which  cases  the  children  might 
inherit  some  character  not  expressed  in  the  parent. 
Such  a  possibility  is  improbable.  If  the  defects  of  the 
parents  be  the  same  they  will  be  unable  to  transmit 


792  PUBLIC   HEALTH  ADMINISTRATION 

that  which  they  lack  We  find  in  nature  several  in- 
stances in  which  the  parental  defects  may  appear  sim- 
ilar, though  really  distinct.  It  is  then  possible  that 
each  parent  may  thus  supply  the  deficiency  of  the 
other,  and  in  the  first  hybrid  generation  defects  may 
disappear,  to  reappear  in  subsequent  generations.  By 
Mendel's  Law  we  may  know  that  in  case  of  a  union  be- 
tween a  degenerate  and  a  normal  person,  the  degen- 
eracy might  be  shown  in  a  portion  only  of  the  off- 
spring; and  by  a  continuance  of  such  union  with  nor- 
mal persons  in  future  generations,  degeneracy  might 
be  obliterated.  Such  union  of  the  normal  with  the 
degenerate  is  not  to  be  commended  on  biologic 
grounds,  for  it  would  take  the  place  of  the  blending  of 
two  normal  strains,  which  should  result  in  only  nor- 
mal offspring.  In  the  one  case,  we  have  still  the 
production  of  individuals  who  would  be  public 
charges;  in  the  other,  none  should  be  public  charges. 
The  state,  therefore,  has  a  perfect  right  in  self  protec- 
tion, to  prohibit  by  any  reasonable  means  the  breeding 
of  degenerates. 

§511.  Eugenics  versus  low  infant  mortality.  The 
tremendous  movement  for  the  bettering  of  conditions 
in  childhood  cannot  be  wholly  eugenic  in  its  effect.  By 
lessening  infant  mortality,  the  tendency  is  to  keep 
alive  many  who  represent  a  weak  general  vitality 
coupled  with  weak  mentality.  It  is  a  singular  fact 
that  these  movements — providing  playgrounds  for  the 
children,  furnishing  the  services  of  visiting  nurses, 
free  hospitals,  and  dispensaries — are  very  largely  pro- 
moted by  a  generation  of  men  and  women  in  whom 
there  are  distinct  signs  of  decaying  parental  interest. 
Many  of  those  who  are  active  in  such  movements  are 


EUGENICS  793 

themselves  childless.  Such  eugenic  efforts  are  like 
the  man  trying  to  lift  himself  over  the  fence  by  his 
bootstraps.  A  physical  fact  is  plainly  stated  by  Pro- 
fessor Karl  Pearson,  when  he  said,  "No  degenerate 
and  feeble  stock  will  ever  be  converted  into  healthy 
and  sound  stock  by  the  accumulated  effects  of  educa- 
tion, good  laws,  and  sanitary  surroundings.  Such 
means  may  render  the  individual  members  of  the  stock 
passable,  if  not  strong,  members  of  society;  but  the 
same  process  will  have  to  be  gone  through  again  and 
again  with  their  offspring,  and  this  in  ever- widening 
circles,  if  the  stock,  owing  to  the  conditions  in  which 
society  has  placed  it,  is  able  to  increase  its  numbers." 
Professor  George  E.  Dawson,  in  The  Right  of  the 
Child  to  be  Well  Born,  has  given  the 7  keynote  to  real 
eugenics :  ' '  Children  will  never  be  well-born  until  they 
are  desired  by  the  men  and  women  who  are  potential 
parents.  A  generation  that  does  not  desire  offspring 
will  be  as  weak  in  its  power  to  propagate  fit  children 
as  would  a  generation  that  did  not  desire  culture  or 
wealth  in  the  power  to  become  educated  or  prosper- 
ous. ' '  "While  all  movements  directed  towards  the  sav- 
ing of  life  and  health  are  to  be  commended  we  must 
remember  that  they  may  be  distinctly  opposed  to 
eugenics. 

§  512.  Legislation  based  on  biology.  The  foregoing 
clearly  illustrates  that  all  laws  on  the  subject  of  eu- 
genics should  be  based  upon  the  science  of  biology. 
No  sociologist  should  attempt  to  force  such  legislation 
without  its  approval  by  competent  biologists.  No  leg- 
islation is  safe  upon  the  subject  unless  it  be  reason- 
able; and  to  be  reasonable,  it  must  be  grounded  upon 

7  p.  43. 


794  PUBLIC    HEALTH   ADMINISTRATION 

fact,  rather  than  theory;  upon  sicence,  rather  than 
emotion. 

At  present  the  state  of  our  knowledge  does  not  war- 
rant much  legislation.  There  is  a  condition  some- 
times found  present  in  which  persons  bleed  excessively 
from  the  slightest  injury.  They  are  familiarly  known 
as  "bleeders."  It  is  shown  by  experience  that  this 
condition  is  transferred  from  mothers  particularly  to 
the  children,  and  that  it  is  not  safe  for  such  women  to 
have  children.  Legislation  seems  to  be  unnecessary 
in  such  a  case,  as  the  same  end  may  be  obtained 
through  education.  Even  the  educational  value  of 
eugenic  legislation  must  be  slight.  If  legislation  be 
unnecessary  it  is  therefore  not  to  be  desired.  In  the 
New  Jersey  case  attention  was  called  by  the  court  to 
the  fact  that  the  patient,  being  in  a  state  institution, 
was  protected  from  procreation.  Unnecessary  legisla- 
tion is  especially  to  be  condemned  until  a  full  develop- 
ment of  the  science  upon  which  it  should  be  based  has 
been  attained. 


INDEX  OF  CASES 


Aaron  v.  Broiles,  64  Tex.  316 

497,    501,  603 

Abeel  v.  Clark,  84  Cal.  226 .. .    634 
Abrams  v.  Ervin,  9  Iowa,  87. . 

361,  467,  468,  670 

Adams  v.  Hackett,  27  N.Y.289.  238 

Milwaukee,  129  N.  W. 

518 733,  739,  746 

Milwaukee,  228  U.  S. 


[references  are  to  pages] 

Allen  v.  State,  21  Ga.  217. .  .   388 

State,  42  Ala.  525... 

172,  191 


572 178,  733,  739,  740,  747 

Tyler,  121  Mass.  380.   464 


Adams  County  v.  Aikman,  52 

So.   513 428,  443 

Adler  v.   Whitbeck,   44   Obio, 

539    651 

Ahana    v.    Insurance    Co.    of 

Nortb  America,  15  Ha.  636 

617,  771 

Akwai  v.  Royal  Insurance  Co. 

14  Ha.  533 617 

Albright    v.    Bedford   County, 

106   Pa.   582 446 

Aldrich    v.    Tripp,    11    R.    I. 

141     520,  521,  690 

Alexander   v.  McKenzie,   2   S. 

C.    81     423 

Allen  v.  Bernards,  28  Vr.  303.   619 

Blunt,   3   Story,   742.    123 

Commonwealth,        83 

Va.    94 500 

DeKalb     County,     61 

S.   W.    291 429,  619 

Georgia,  166  U.  S.  138  187 


Allison  v.  Cash,  143  Ky.  679; 
137  S.  W.  245 590,  595,  612 

Allopathic  State  Board  of 
Medical  Examiners  v.  Fow- 
ler, 50  La.  Ann.  1358;  24  S. 
R.   809    667 

Alston  v.  Ball,  77  S.  E.  R.  727     86 

American  DeForest  Wireless 
Tel.  Co.  v.  Superior  Ct., 
San  Francisco,  153  Cal.  533  196 

American  Insurance  Co.  v. 
Canter,   1   Peters,   511 262 

American  Print  Works  v.  Law- 
rence,  3   Zabr.   590 206 

American  School  of  Magnetic 
Healing  v.  McAnnulty,  187 
U.   S.    94 138,  139,  275 

Ammon  v.  Newton,  50  N.  J.  L. 
543    730 

Amy  v.  Supervisors,  11  Wall. 
136    500 

Anderson  v.  Brewster,  44 
Ohio,    576    651 

Anderson  v.  O'Conner,  98  Ind. 
118    607 

Andrews  v.  Insurance  Co.,  37 
Me.  256    337 

Andrews  v.  Portland,  79  Me. 
484    378,  453,  454 

Andrews  v.  United  States,  2 
Story  C.  C,  202 438 

Appeal  of  Board  of  Health, 
Buffalo  Lake,  95  N.  W.  221  620 


795 


796  INDEX   OF    CASES 

[references  are  to  pages] 

Apple    v.     Crawford     County,  Auditors   v.   Benoit,   20   Mich. 

105   Pa.   300 438  170    453 

Arbuckle    Bros.    v.    Blackburn  Augusta   v.   Lombard,   99   Ga. 

Dairy  Food  Com.,  113   Fed.  282     521,  690 

616    299  Aull  v.  Lexington,  18  Mo.  401  607 

Argenti   v.   San   Francisco,    16  Austin  v.  Association,  87  Tex. 

Cal.  255    527  330    174 

Armstrong    v.   United    States,  Bartholomew,  107 

182   U.   S.   243 195  Fed.    349    526 

Ashville  v.  Nettles  (N.  C.)   80  Helms,  65  N.  C.  560.   395 

S.   E.  236 657,  746      Murray,  33  Mass.  (16 

Ashley  v.  Port  Huron,  35  Mich.  Pick.)     121 174,  600 

296     504,  523       state,    56    So.   345 ..  .    646 

Astor  v.  New  York,  62  N.  Y.  Tennessee,  179  U.   S. 

567     369  343 293,  295,  296,  298,  749 

Athanasa    v.    United    States,  Auten  v.  School  Board,  83  Ark. 

227  U.  S.  326 277  431     635 

Atlantic   City    v.    Crandol,   38 

Vr.   488    371  B 

Attorney  General  v.  Barstow, 

4    Wis.    587 132  Babcock  v.   Buffalo,   56  N.  Y. 

Birmingham,        Tame  268    236 

and     Rea     Dist.     Drainage  Bacigalupo,  Ex  parte,   132  N. 

Board,  L.  R.  Chan.  Div.  1910,  W.  303   642 

Vol.    1,    48 525,  702  Bacon    v.    Boston,    154    Mass. 

■ Common    Council,    29  100   522,  523 

Mich.    108    365  Badeau  v.  United  States,  130 

Davis,  44  Mo.  131 .  .  .   453  U.    S.   439 379 

■ Detroit,  58  Mich.  213   114  Badger   v.    United   States,    93 

■ Grand  Rapids  (Mich.),  U.  S.  599 . 471,  482 

141  N.  W.  R.  890 792  Bailey  v.  Mayor  of  New  York, 

Holihan,  29  Mich.  116  534  3   Hill,   531 

Love,     39     N.     J.     L.  520,521,528,689,690 

476    424,  441  Baily  v.  Philadelphia,  184  Pa. 

McCabe,      172      Mass.  594    520 

417;    52   N.   E.   717 374,  404  Baird   v.  Cochran,   4   S.  T.  R. 

Northampton,  143  397    553 

Mass.   589    539  Baker    v.   Commrs.,    62    Mich. 

—Squires,  14  Cal.  13 .  . .    469  327    394 

Stratton,    194    Mass.  Cushman,    127    Mass. 

51     370,  489  105     399 

Attwood    v.    Bangor,    83    Me.  Kirk,  33  Ind.  517 425 

582    523      State,   27   Ind.   485 .  .    364 

Auburn    v.    Quick,    99    N.    Y.  Baldwin    v.    Kansas,    81    Ala. 

138    456  272    451 


INDEX   OF    CASES 


797 


[REFERENCES 

Baldwin  v.  Seaboard  Air  Line 

R.  R.  Co.,   128  Ga.  567 590 

Baltimore    v.    Fairfield    Imp. 

Co.,  39  Atl.  1081 608 

Radecke,  49  Md.  217.  338 

Schnitker,  84  Md.  34 .  522 

State,  15  Md.  376... 

114,  370 

Baltimore  Traction  Co.  v.  Belt 

R.  Co.,  151  U.  S.  138.: 187 

Bangs  v.  Dunn,  66  Cal.  72..  463 
Bank  of  Columbia  v.  Okley,  4 

Wheat.    235 189,  191 

Bank  of  United  States  v.  Dan- 
ridge,  12  Wheat.  64... 386,  388 
Banner  v.  McMurray,  1  Dev.  L. 

218     419,  467 

Banta  v.  Chicago,  172  111.  204  650 
Barbier  v.  Connolly,  113  U.  S. 

27    322,  764 

Barbour  v.  Ellsworth,  67  Me. 

294    618 

Barbour  v.  United  States,  17 

Ct.   of   CI.   1499 481 

Bardstown  v.  Nelson  County, 

78  S.  W.  169 618 

Barker  v.  People,  3  Cow.  686.  147 
Barkley  v.  Levee  Commission- 
ers,  93   U.  S.   258 471- 

Barnard  v.   Sherley,   135   Ind. 

547     226,  609 

Barnes  v.  Means,  82  111.  379.  550 
Barrett  v.  Hill  County,  74  S. 

W.    811    626 

Barron  v.  Baltimore,  7  Peters, 

243    147,  188 

Barrow  Steamship  Co.  v.  Kane, 

170  U.  S.  100 196 

Barry  v.  Smith,   191  Mass.  70; 

77  N.  E.  1099 605,  609 

Bartch  v.  Cutler,  6  Utah,  409  446 
Bartlett  v.  Lock  wood,  160  U. 

S.  361    589,  615 

Barton  v.  New  Orleans,  16  La. 

Ann.    317     436 


ARE   TO   PAGES] 
Bass  v.  State,  34  La.  Ann.  494  156 
Bates    v.    Westborough,    151 

Mass.   174    522 

Bath  v.  Reed,  78  Me.  276 472 

Bayles  v.  Newton,  50  N.  J.  L. 

549    729 

Beach  v.  Elmira,  58  Hun,  606  523 
Beal  v.  McVicker,  8  Mo.  App. 

202    463 

Bealafield  v.  Verona,  188  Pa. 

627    522 

Beaman  v.  United  States,  19 

Ct.   of  CI.   5 424 

Beard  v.  Decatur,  64  Tex.  7.  446 
Becker  v.  Janiski,  27  Abb.  N. 

C.  45  552 

Beckwith    v.    Racine,    7    Biss. 

142    471 

Bedford  v.  Rice,  58  N.  H.  446 .  379 
Beebe  v.  Robinson,  52  Ala.  66.  539 
Beeks    v.    Dickinson    Co.,    131 

Iowa,  244 503,  517,  595,  618 

Beers  v.  Board  of  Health,  35 

La.   Ann.   1132 613 

Beha   v.  State    (Neb.),  93  N. 

W.  155 729 

Beiling  v.  Evansville,  144  Ind. 

644    174 

Beine,  In  re,  42  Fed.  545.  .294,  295 
Belfast  v.  Morrell,  65  Me.  580  398 
Belknap  v.  Belknap,  2  Johns 

Ch.   463    538 

Bell  County  v.  Blair,  50  S.  W. 

1104    621 

Bell  v.  Hearm,  19  How.  252.  125 
Bellingham  v.  Cissna,  87  Pac. 

481 333 

Bellows  v.  Raynor,  101  N.  E. 

181   v-740,  741 

Bellows  v.  Seneca  County,  133 

N.  Y.  586    618 

Belmont      v.     New     England 

Brick  Co.,  190  Mass.  442.  .  . 

212,  766 


798 


INDEX   OF    CASES 


[REFERENCES 

Bennett  v.  Marion,  119  Iowa, 

473,    375     523 

Bennett  v.  United  States,  227 

U.   S.   333    277 

Bennett  v.  Walker,  23  111.  97 .  554 
Bentham  v.  Philadelphia,  196 

Pa.  302 522 

Bentley    v.   Phelps,    27    Barb. 

524    416,  479,  540 

Benz  v.  Kremer,  142  Wis.  1 ...  764 
Bergen  v.  Powell,  94  N.  Y.  591  424 
Best  v.  Polk,  18  Wall.  112.427,  471 
Beyman  v.  Black,  47  Tex.  558  190 
Birkbeck  v.  Stafford,  14  Abb. 

Pr.  285   465 

Birmingham  v.  Land,  137  Ala. 

538    524 

Bishop  v.  Ottawa  Supervisors, 

140   Mich.   177 624 

Bishop  v.  Williamson,  11  Me. 

495    507 

Bissell    v.   Davison,    65    Conn. 

183     634 

Bissette    v.    People,    193    111. 

334    173 

Bjelland  v.  Mankato,   127  N. 

W.  397    431,  457,  627 

Blair  v.  Forehand,   100  Mass. 

136    236 

Blake  v.  McClurg,   172  U.  S. 

259    196 

Blake  v.  United  States,  14  Ct. 

of  CI.  462    483 

Blazier    v.    Miller,    10    Hun, 

435     179,  744,  746 

Bliss   v.   Lawrence,   58   N".  Y. 

442    463,  464,  465 

Bloom  v.  Koch,  63  N.  J.  Eq. 

10    197 

Bloom  v.  Utica,  2  Barb.  104 . . 

164,  603,  609 

Blue  v.  Beach,  155  Ind.  121; 

56   N.   E.    89;    50   L.   R.   A. 

64     211,  634,  635 


ARE   TO   PAGES] 

Board  of  Health,  In  re,  64 
Hun,  634    388 

Health  Rules  in  Bor- 
oughs, 14  Pa.  C.  C.  116;  3 
D.  R.  225    103 

Health     v.     Loyd,     1 

Phia.  20   610 

Health     of     Cranford 

Township  v.  Court  of  Com- 
mon Pleas,  85  Atl.  217 141 

Health  of  Kortright  v. 

Cease,  53  Hun,  638 426 

Liquidation,  et  al.   v. 

McComb,  92  U.  S.  531 498 

Trade    v.    People,    91 

111.  80    382,  669 

Boehm  v.  Baltimore,  61  Md. 
259    662 

Bohen,  In  re,  115  Cal.  372...   174 

Bonham,  In  re,  8  Coke  107a. . 
345,  663 

Bonnett  v.  Valier,  116  N.  W. 
885    762 

Borden  v.  Board  of  Health, 
Montclair,  80  Atl.  30 739 

Borger  v.  Borough  of  Alliance, 
28  Pa.  Sup.  Ct.  407 630 

Boring  v.  Williams,  17  Ala. 
516 188 

Boston  v.  Schaffer,  9  Pick.  415  651 

Boston  Beer  Co.  v.  Massachu- 
setts, 97  U.  S.  25 157 

Boston  Belting  Co.  v.  Boston, 
149  Mass.  44    523 

Bourke  v.  Sanitary  District  of 
Chicago,  92  111.  App.  333..   431 

Boute  v.  Emmer,  43  La.  Ann. 
980    364 

Bowman  v.  Chicago  and 
Northwestern  R.  R.  Co.,  125 
U.  S.  465 282,  288,  294 

Boyd  v.  Alabama,  94  U.  S. 
645    157 

Boyd  v.  United  States,  116 
U.    S.    616 51 


INDEX 

[references 
Braceville  Coal  Co.  v.  People, 

147    111.    66 197 

Brackett  v.  Blake,  7  Met.  335  464 
Brady  v.  Howe,  50  Miss.  607. . 

376,  534 

Braman    v.    New    London,   74 

Conn.   695    384 

Brattleboro  v.  Stratton,  24  Vt. 

306    622 

Braudlacht,  Ex  parte,  2  Hill, 

367    537 

Breckenridge    County    v.    Mc- 
Donald, 150  S.  W.  549 579 

Brent    v.    Hagner,    5    Cranch, 

71    537 

Brick  Presbyterian  Church  v. 

Mayor,   5   Cow.   538 239 

Bright      v.      Supervisors,      18 

Johns.   242    452 

Brimmer  v.  Rebman,  138  U.  S. 

78    327 

Briscoe    v.    Clark    County,   95 

111.  309   439 

Britton  v.  Steber,  62  Mo.  370 

369,  372 

Brodbine  v.  Revere,  182  Mass. 

598    83 

Brodie  v.  Campbell,  17  Cal.  11  424 
Brotherhood    of    Painters    v. 

Barton,  93  N.  E.  64 104 

Brown  v.  Haywood,  4  Heisk, 

357     114 

Houston,    114    U.    S. 

622    281 

Howard,     14     Johns, 

119     504,  515 

Livingston  County,  85 


N.  W.  745 

431,  437,  447,  585,  627 

Maryland,  12  Wheat. 

419     280,  286 

Murdock,    140    Mass. 


314    503,    573,    610,   616 

Perkins,  12  Gray,  89.   236 


OP   CASES  799 

ARE   TO   PAGES] 

Brown   v.    Pierce    County,   28 

Wash.    345 179,  604 

Purdy,    8    N.    Y.    St. 

143    164,  204,  584 

State,  82  Ga.  224 238 

Vinalhaven,     65     Me. 

402     516,  613 

Bryant  v.  St.  Paul,  33  Minn. 

289    516 

Buck  v.  Eureka,  109  Cal.  504.  445 
Buckner  v.  Veuve,  63  Cal.  304  358 
Buffalo  v.  H.  L.  &  E.  W.  R.  R. 

Co.,  152  N.  Y.  276;  46  N.  E. 

496    54 

Bxiford    v.     Speed,     11     Bush 

(Ky.),    338 193 

Bugajewitz  v.  Adams,  228  U. 

S.    585     278 

Bulger,  In  re,  45  Cal.  553.381,  421 
Bunn  v.  People,  45  111.  397.350,  367 
Bunting  v.   Willis,   27    Gratt. 

144    483 

Burch  v.  Hardwicke,  23  Gratt. 

51    538 

Burch  v.  Hardwicke,  30  Gratt. 
24    369 

Burfenning  v.  Chicago,  etc., 
R.  R.  Co.,  163  U.  S.  321 .  138,  275 

Burger  v.  Philadelphia,  196 
Pa.  41    522 

Burk  v.  Webb,  32  Mich.  174..   452 

Burrough  of  Sayre  v.  Phillips, 
148   Pa.   482 173 

Burt  v.  Railway  Co.,  31  Minn. 
472    375 

Bushnell  v.  Chicago,  Bur.  & 
Q.  R.  R.  Co.,  259  111.  391. .  .   225 

Butchers'  Union  Slaughter- 
house Co.  v.  Crescent  City 
Live  Stock  Land  Ins.  Co., 
Ill  U.  S.  746 .157,  687 

Butler  v.  Chambers,  36  Minn. 
69    728 

Neosho   Co.,    15    Kas. 

178     452 


800 


INDEX   OF    CASES 


[references  are  to  pages] 
Pennsylvania,     10  Carpenter  v.   Blake,   10   Hun, 


Butler    v 

How.  403 197 

Regents,  32  Wis.  124  368 

Butler  County  v.  Gardner,  96 

S.  W.  582 429 

Butterworth  v.  United  States, 

112  U.  S.  50 125 


Cahokia  v.  Rautenberg,  88  111. 

219  509 

Calder  v.  Bull,  3  Dall.  A.  386  134 
Calder  v.  Kurby,  5  Gray,  597 

238,  677 

Caldwell  v.  Harrison  11  Ala. 

755    394 

Caldwell  v.  North  Carolina  187 

U.    S.    622 279,  338 

Caldwell  v.  Texas   137  U.   S. 

692    186 

California    Reduction    Co.    v. 

Sanitary  Reduction  Works, 

199  U.  S.  306 . .  181,  205,  206,  341 
Callison  v.  Hedrick,  15  Gratt. 

(Va.)    244    388 

Cambridge     v.     Monroe,     126 

Mass.  496    234 

Cambridge,  v.    Trelegan,    181 

Mass.  565    239 

Campau  v.  Langley,  39  Mich. 

451    236 

Campbell,  Ex  parte,  74  Cal.  20  335 
Campbell  v.  District  of  Colum- 
bia, 19  App.  D.  C.  131..  181,  713 
Canniff    v.    Mayor,    4    E.    D. 

Smith,  430 398 

Capps  v.  Adams  County,  43  N. 

W.  R.  114   455 

Carbondale  v.  Wade,  106  111. 

654    238 

Carleton  v.   People,   10   Mich. 

250    373,  375 

Carneal  v.  Banks,  10  Wheat. 

181  252 


358  551 

Carpenter  v.  People,  8  Colo. 

116   380 

Carr    v.   Board   of    Education, 
Vol.  13  Ohio.  Dec.  10  N.  P. 

Rep.  1903  637 

Carr  v.  Northern  Liberties,  35 

Pa.  324 698 

Carr  v.  State,  111  Ind.  101..  484 
Carter  v.  McFarland,  75  Iowa, 

196     397 

Carter  v.  Sympson,  8  B.  Mon. 

(Ky.)    155    388 

Carthage  v.  Colligan,  144  N.  Y. 

Supp.   468    345 

Cartwright  v.  City  of  Cohees, 

165  N.  Y.  631 84,  699 

Cary  v.  State,  76  Ala.  78 372 

Case  v.  Blood,  71  Iowa,  632..   365 
Case      v.     Lowell,      7      Gray 

(Mass.),  33 400 

Case  of  Prerogative,  12  Rep. 

12   156,  206 

Cassin  v.  Zavalla,  70  Tex.  419  395 
Castillo  v.  McConnico,  168  U.  S. 

674    187 

Cavanaugh      v.    Boston,    139 

Mass.  426    212 

Cawley  v.  Allentown,  2  Leh. 

58    428 

Cay  ford  v.  Wilbur,  86  Main, 

414    551 

Cedar  Creek  v.  Wexford  Coun- 
ty, 135  Mich.  124 

430,    457,    625,  626 

Census  Superintendent,  In  re, 

15  R.  I.  614 389 

Central  Ga.  R.  R.  Co.  v.  Mad- 
den, 69  S.  E.  165 596 

Cesar  v.  Karutz,  60  N.  Y.  229 .    644 
Chae    Chan    Ping    v.    United 

States,  130  U.  S.  581 193 

Chalkley  v.  Richmond,  88  Va. 
402    522 


INDEX   OP    CASES 


801 


[references 

Chambers  v.  Gilbert,  17  Tex. 

Civ.   App.    106 202 

Champion  v.  Ames,  188  U.  S. 

331    273 

Champion  v.  Crandon,  84  Wis. 

405     522 

Chandler    v.    Lawrence,     128 

Mass.   213    419 

Chapman  v.  Muskegon  Coun- 
ty, 134  N.  W.  1025.  .  .  .361,  455 
Chapman  v.  Rochester,  110  N. 

Y.  273  713 

Chariton  v.  Barber,  54  Iowa, 

360    338 

Charles  v.  Hoboken,  27  N.  J. 

L.  203    395 

Charles    River    Bridge    Co.    v. 

Warren      Bridge      Co.,      11 

Peters,  240    123 

Charlotte,     etc.,     R.     Co.     v. 

Gibbes,  142  U.  S.  386 198 

Chase  v.  Lowell,  7  Gray,  33.. 

400,  436 

Chicago  v.  Bowman  Dairy  Co., 

234  111.  294 334 

Drogasawacz,  256  111. 

34     662,  764 

Gage,  95  111.  593.473,  474 

Ice  Cream  Co.,  252  111. 

311   5,  333 

Knobel,  232  111.  112.   197 

Netcher,  183  111.  104; 

55  N.  E.  R.  707 736 

Rumpf f,  45  111.  90 .  .  . 

177,    337,  714 

Schmidinger,    243   111. 

167;    also,    190 334,  764 

Selz,  202  111.  545  .  521,  690 

Wright,  69  111.  326..  369 

Chicago  B.  &  Q.  R.  Co.  v.  Ne- 
braska, 170  U.  S.  57 198 

P.  &  P.  Co.  v  Chicago, 

88    111.    221 662 

Rock  Island  &  P.  R. 

Co.  v.  State,  86  Ark.  412..    196 


ARE   TO   PAGES] 

Chicago,  St.  P.,  M.  &  O.  R.  Co. 

v.  Douglas  County,  134  Wis. 

197     157 

W.  &  V.  Coal  Co.  v. 

People,   181  111.  270;   54  N. 

E.  961;  48  L.  R.  A.  554. .  .  600 
Child  v.  Boston,  4  Allen,  41..  522 
Childs  v.  Phillips,  45  Me.  408 .  626 
Chirac  v.  Chirac,  2  Wheat.  259 

251,  252 

Chisholm  v.  Coleman,  43  Ala. 

204 453 

Christy     v.     Supervisors,     39 

Cal.   3    421,  423 

Church  Street,  In  re,  49  Barb. 

455     396,  397 

Chy  Lung  v.  Freeman,  92  U. 

S.   275    196 

Cincinnati     v.     Cameron,     33 

Ohio,    336    689 

City     Council    v.    Ahrens,    4 

Strob.    (S.  C.)    241 340 

City       Council       v.       Baptist 

Church,  4  Strob.  306 340 

City  Council  v.  Louisville,  etc., 

R.  R.  Co.,  84  Ala.  127 538 

Civil  Rights  Cases,  109  U.  S. 

3    192 

Clark  v.  Des  Moines,  19  Iowa, 

199    509 

Clark  v.  May,  2  Gray,  410.  . .  503 
Clark  v.  Mitchell,  64  Mo.  564.  190 
Clay  v.  St.  Albans,  43  W.  Va. 

539    522 

Clayton  v.  Berry,  27  Ark.  129  462 
Clason  v.  Milwaukee,  30  Wis. 

316 339 

Cleaver  v.  Commonwealth,  34 

Pa.  283 ..533,  534 

Clement    v.    Town    of    Casper 

(Wy.),  35  Pac.  R.  472.. 173,  601 
Clinton  v.  Clinton  County,  16 

N.  W.  87   630 

Clooman  v.  Kingston,  37  Misc. 

Per.    322    452 


802 


INDEX   OF    CASES 


[references  are  to  pages] 


Coal  Creek   Township  v.  Le- 

wandowski,  84  Ind.  346...   771 
Coal  Float  Co.  v.  City  of  Jef- 
ferson, 112  Ind.  15 . .  176,  343,  714 
Coates  v.  Mayor  of  New  York, 

7  Cow.  585   174,  239 

Cobb  v.  French,  111  Minn.  429  741 
Cocke   v.    Halsey,    16    Peters, 

71    373 

Cockrane  v.  Maiden,  152  Mass. 

365    700 

Cohen  &  Co.  v.  Rittman  (Tex.) 

139  S.  W.  59 648 

Cohens  v.  Bank  of  Virginia,  6 

Wheat.  414   260 

Cole  v.  Kegler,  64  Iowa,  69; 

19  N.  W.  843 224,  618,  771 

Coleman  v.  Elgin,  45  111.  App. 

64    446 

Collier  v.  Town  of  Scott,  102 

N.  W.  909 362,  627 

Collins  v.  New  Hampshire,  171 

U.   S.   30 730 

Collins  v.  Tracy,  36  Tex.  546. .   484 
Collins  v.  United  States,  15  Ct. 

of  Claims,  22 413 

Colon  v.  Lisk,  153  N.  Y.  188 .   237 
Columbus  v.  Cutcomp,  61  Iowa, 

672    238 

Commissioners   v.   Douglas,    1 

Binn.  77   389 

1 McClintock,     60     Md. 


560 


-Peck,  5  Hill,  215 

-Philadelphia   Commis- 


638 
379 


399 


sioners,  5  Binn.  534.  .  . . 
Williams,  79  Ky.  42. . 

474,    486 

Commissioners'  Court  of  Perry 

County  v.  Medical  Society, 

127  Ala.  257 381,  638 

Commissioners  of  Immigration 

v.  Brandt,  26  La.  Ann.  29 . .   308 
Commonwealth     v.     Alger,     7 

Cush.  84    156 


Commonwealth  v.  Allen,   128 

Mass.  308    394 

Arnold,  3  Littell,  316  467 

Barry,  Hardin,  229..  474 

Beatty,    15    Pa.   Sup. 

Ct.    5    758 

Carter,   132  Mass.  12.. 

172,    180,    600,  744 

Chambers,     1     J.     J. 

Marsh,   160    474 

Clark,    14    Lane.    L. 


Rev.   41    531 

Cutter,   156   MassJ   52  174 

Davis,  162  Mass.  510.  200 

Drew,  208  Mass.  493 .  735 

Fowler,  10  Mass.  290  532 

Gilbert,  160  Mass.  157  201 

Gordon,  159  Mass.  8; 


38  N.  E.   709 742 

Hanley,   9   Pa.    509..   426 

Hargest,  7  Pa.  County 


Ct.    333    398 

Jacobson,    183    Mass. 

242     ". 634 

Jones,  12  Pa.  365.410,  533 

McLoughlin,    120    Pa. 

518     365 

Meeser,  44  Pa.  341..   533 

Newhall,     205     Mass. 

344    333 

Olyphant   Borough,   2 

Lack.    L.    N.    181 531 

Patch,  97  Mass.  221 . . 

340,  583 

Pear,  183  Mass.  242; 


66  N.  E.  719 634,  635 

Plaisted,     148     Mass. 

375    H3 

Read,  2  Ashm.    (Pa.) 

261    396 

Roberts,  29  N.  E.  522  699 

Rowe,  218  Pa.   168..    637 

Schaffner,    146    Mass. 


512;   16  N.  E.  280 742 

Staples,  77  N.  E.  712  212 


INDEX   OF    CASES 


803 


[REFERENCES 

Commonwealth  v.  Sutherland, 
3  S.  &  R.  (Pa.)  145 419 

Waite,        11        Allen 

(Mass.),  264   172 

Walter,  83  Pa.  105.. 

532,  534 

Ward,  123  S.  W.  673  752 

Wetherbee,  153  Mass. 

159;    26  N.  E.  114 742 

Wheeler,     91     N.     E. 

(Mass.)    415 172,   177,723 

White,  190  Mass.  578  756 

Yost,    11    Pa.   Super. 

Ct.    323    701 

Compagnie  Francaise  de  Navi- 
gation a  Vapeur  v.  Louisi- 
ana, 186  U.  S.  380.158,  325,  595 

Confiscation  Cases,  20  Wall. 
92    125 

Congdon  v.  Nashua,  72  N.  H. 
468    625 

Conner  v.  Mayor,  2  Sand.  355  470 

Conrad,  In  re,  15  Fed.  R.  641  452 

Conroy  v.  Mayor,  6  Daly,  490; 
Affirmed,  67  N.  Y.  610.113,  408 

Consolidated  Coal  Co.  v.  Illi- 
nois,  185  U.   S.  203 198 

Cook  v.  Marshall  Co.,  196  U. 
S.  261 297 

Cook  v.  Peacham,  50  Vt.  231.   540 

Cook  v.  Pennsylvania,  97  U.  S. 
566    288 

Cooke  v.  Board  of  County 
Commissioners,  13  Okla.  11  624 

Cooley  v.  O'Connor,  12  Wall. 
391    395 

Cooner  v.  Gilmer,  32  Cal.  75 . . 
385,  387 

Cooper  v.  Lampeter,  8  Watts. 
(Pa.)  125   395 

Cooper  v.  Scranton,  21  Pa. 
Super.  Ct.  17 522 

Copple  v.  Davie  County,  50 
S.  E.   574 361,  619 

Corliss,  In  re,  11  R.  I.  638 

358,  360,  414,  483 


ARE   TO   PAGES] 

Cortis    v.    Kent    Waterworks 

Co.,  7  B.  &  C.  314 394 

Cotten    v.    Ellis,    7    Jones    L. 

545    488 

Council    Bluffs   v.    Waterman, 

86  Iowa,  688 446 

County  Commissioners  v.  Hel- 

len,  72  Md.  603 393 

County  Seat  v.  Linn  County, 

15  Kas.  500 200 

Courter  v.  Newark,  25  Vr.  325 

80,  699 

Cousins  v.  Burgie,  13  D.  R.  368  637 
Coventry  v.  Barton,  17  Johns, 

142  504,  515 

Covington     v.     Mayberry,     9 

Bush.  304    446 

Cox,  Ex  parte,  63  Cal.  21 75 

Craig  v.   Chambers,    17   Ohio, 

253     551 

Craig  v.  Norfolk,  1  Mod.  122.  387 
Cranston  v.  Mayor,  61  Ga.  572  202 
Crawford   v.  Dunbar,   52   Cal. 

36 358,  414 

Creier  v.  Fitzwilliam,  83  Atl. 

128     518,  616,  628 

Crocker  v.  Crane,  21  Wend.  211 

361,  670 

Cronin  v.  Gundy,  16  Hun,  520  474 
Crossman  v.  Lurman,   192  U. 

S.    189    299 

Crowell  v.  Crispin,  4  Daly,  100  509 
Crowley    v.    Christensen,    137 

U.  S.  86 175 

Crygier   v.   United  States,  25 

Ct.  of  Claims,  268 453 

Cubit  v.  O'Dett,  51  Mich.  347 

504,  515 

Cummings  v.  Missouri,  4  Wall. 

277 198 

Cummins  v.  Seymour,  79  Ind. 

491 522,  698 

Cunningham   v.   Macon   R.   R. 

Co.,   109  U.  S.  446 498 

Curies'  Case,   11   Coke,   2 387 


804 


INDEX   OP    CASES 


[references  are  to  pages] 


Currier  v.  R.  R.  Co.,  31  N.  H. 
209    420 

Curry  v.  Stewart,  8  Bush.  560  477 
Curry  v.  Wright,  86  Tenn.  636  379 
Curtis  v.  Butler,  24  How.  435 .  395 
Cutter  v.  Hamlin,   147   Mass. 

471    644 

Cynosure,  The,  1  Sprague,  88 

Fed.  Cas.  No.  3529 196 


Dago,  The,  61   Fed.   986 586 

Dailey    v.    State,    8    Blackf. 

(Ind.)   329    358 

Dallas  v.  Allen,  40  S.  W.  324.  616 
Dalton  v.  Wilson,  118  Ga.  100  516 
Danaher  v.  Brooklyn,  51  Hun, 

563    521,  690 

Darby  v.  Wilmington,  76  N.  C. 

133    454 

Dargan  v.  Mobile,  31  Ala.  469  517 
Davenport  v.  Hull,  18  Wend. 

510    398 

Davidson  v.  New  Orleans,  96 

U.  S.  97 190,  513 

Davis    v.   Massachusetts,    167 

U.    S.   43 200 

Dawe    v.    Board    of    Health, 

Monroe,  146  Mich.  316 624 

Debolt    v.    Cincinnati    Tp.,    7 

Ohio,  237   446 

DeCastellux    v.    Fairchild,    15 

Pa.  St.  18 74 

Decatur  v.  Vermilion,  77   111. 

315    456 

Deems  v.  Mayor  of  Baltimore, 

80  Md.  14 ;  26  L.  R.  A.  541 . . 

179,  746 

Delano  v.  Goodwin,  48  N.  H. 

203    317 

Delano  v.  Smith,  92  N.  E.  500  610 
Delaware  Lack.   &  W.   R.   R. 

Co.  v.  Public  Util.  Commis- 
sioners 83  N.  J.  L.  215 696 


DeLima  v.  Bidwell,  182  U.  S. 

1    195 

DeLovio    v.    Boit,  2   Gallison, 

398     310 

Dent   v.   State   of   West   Vir- 
ginia, 129  U.  S.  114 

173,  198,  217,  665,  666,  667 

Denver  v.  Dunsmore,   7   Colo. 

328    524 

Department     of     Agriculture, 

Notice  of  Judgment,  2516.  .   743 
Department     of     Agriculture, 

Notice   of  Judgment,  2471.   725 
Des  Plaines  v.  Poyer,  123  111. 

Ill    217,  229 

Detroit  v.  Corey,  9  Mich.  165 

522,  698 

Detroit  v.  Redfield,   19   Mich. 

376    436,  446,  452 

Dewis  v.  Webb,  3  Greenl.  326  172 
Dewey  v.  Garvey,   130  Mass. 

86    464 

Diamond    Match    Co.   v.   New 

Haven,  55  Conn.  510 698 

Dickson  v.  People,  17  111.  191 

367,  413 

District  of   Columbia  v.  Gar- 
rison,   25    Appeals,    D.    C. 

563    178,  745 

District  of  Columbia  v.  Lyn- 

ham,  16  Appeals,  D.  C.  185 

177,  722 

District  of  Columbia  v.  Shong 

Lee,  38  Wash.  Law,  460..  .   765 
Dodge  County  v.  Diers,  95  N. 

W.  602   623 

Dolan  v.  Mayor,  68  N.  Y.  279  379 
Donahoe  v.  Kansas  City,  136 

Mo.   657    522,  698 

Donahue  v.  Will  County,  100 

111.    94    488 

Donahue  v.  Dewey,  82  Mich. 

309    376 

Dooley  v.  Kansas  City,  82  Mo. 

444     605 


INDEX  OF   CASES 


805 


[references 
Dooley  v.  United  States,  182 

U.   S.  222 195 

Door  v.  United  States,  195  U. 

S.    138    195 

Dorsey  v.  Ansley,  72  Ga.  460.  534 
Douglas  v.  Kentucky,  168  U. 

S.   488    687 

Douglas  v.  Wickwire,  19  Conn. 

492    373 

Douvielle    v.    Supervisors,    40 

Mich.  585 424 

Dowling  v.  Insurance  Co.,  92 

Wis.  63 75 

Dowling  v.  Rugar,  21   Wend. 

178    468 

Downer  v.  Boston,  7  Cush.  277  700 
Downes  v.  Bidwell,  182  U.  S. 

244    195 

Doyle  v.  Raleigh,  89  N.  C.  133 

360,    367 

Drake' v.  Phillips,  40  111.  389.  538 
Draper  v.  Arnold,  12  Mass.  449  507 
Dubois  v.  Augusta,  Dudley  R. 

30    341 

Dubuc  v.  Voss,   19  La.   Ann. 

210    489 

Duffield  v.  Williamsport  School 

District,  162  Pa.  St.  476...  635 
Dullam   v.  Willson,   53   Mich. 

392 487,  488,   534 

Duluth    v.   Mallett,    43   Minn. 

204    , 739 

Duncan  v.  Missouri,  152  U.  S. 

377    217 

Dunlop   v.    Black,    108   U.   S. 

40    137 

Dunlop  v.  Munroe,  7  Cranch, 

242     507,  515 

Durand  v.  Hollings,  4  Batch. 

451    160 

Durand  v.  Shiawassee  Super- 
visors, 132  Mich.  448 629 

Durham  v.  Lewiston,  4  Greenl. 

140    172,  191 


ARE   TO  PAGES] 

Dykes  v.  Stafford  County,  121 
Pac.   1112    623 

E 

Eap  v.  Lee,  71  111.  193 235 

Eastman  v.  State,  109  Ind.  278  666 
East    St.   Louis   v.    Wehrung, 

50   111.   28    76 

Eckhardt  v.  Buffalo,  156  N.  Y. 

658    241 

Eddy  v.  Board  of  Health,  10 

Phia.  94  603 

Eden  v.  Templeton,  72  Iowa, 

687     365 

Edson  v.  Crangle,  62  Ohio  St. 

49    181 

Edwards  v.  United  States,  103 

U.  S.  471 481,  483 

Edwards    v.    Watertown,    24 

Hun,    428 468,  670 

Egan    v.   Health   Department, 

City  of  New  York,  45  N.  Y. 

S.  325 234,  763 

Egan    v.   Hart,    45   La.   Ann. 

1358;   14  South  244 156 

Eichenlaub  v.  St.  Joseph,  113 

Mo.   395    180,  202 

Eldridge  v.  Trezevant,  160  U. 

S.   452    156 

Eliason  v.  Coleman,  86  N.  C. 

235    533 

Elliott  v.  Chicago,  48  111.  293 .  123 
Elliott  v.  Kalkaska  County,  58 

Mich.   452    628 

Ellis  v.  Cleburne,  35  S.  W.  R. 

495    525 

Ellison  v.  Stevenson,  6  T.  B. 

Mon.  275   467 

Elmore   v.   Overton,    104   Ind. 

548    499 

Ely  v.  Parsons,  55  Conn.  83.  .  507 
Ely  v.  Supervisors  of  Niagara 

County,  36  N.  Y.  297 235 

Ely    v.    Thompson,    3    A.    K. 

Marsh,  70    498 


806 


INDEX    OF    CASES 


[REFERENCES 

Evans  v.  Populus,  22  La.  Ann. 

121    487 

Evans  v.  Trenton,  25  N.  J.  L. 

(4  Zabr.)    766 446,  456 

Evansville  v.  State,  118  Ind. 

426    114 

Everett  v.  Marquette,  53  Mich. 

450    224 

Ewing  v.  Filley,  43  Pa.  384.  .  388 
Ewing    v.    Thompson,    43   Pa. 

372    399 

F 

Fallbrook   Irrigation   Dist.   v. 

Bradley,  164  U.  S.  112 186 

Farnsworth        v.       Kalkaska 

County,  56  Mich.  640 623 

Farrel  v.  Pingree,  16  Pac.  R. 

843    421 

Farrell  v.  Bridgeport,  45  Conn. 

191    367,  369,  453 

Fath  v.  Koeppel,  72  Wis.  289 .   500 

Fell  v.  State,  42  Md.  71 238 

Ferguson    v.    Selma,    43    Ala. 

398   233,  334 

Fernandis,  Ex  parte,  10  C.  B. 

N.   S.   339    553 

Ferrari    v.    Escambia    County 

Bd.  of  Health,  24  Fed.  390  592 
Field  v.  Chipley,  79  Ky.  260. .  463 
Girard  College,  54  Pa. 

233    419 

People,  3  111.  79 

114,   392,  486 

Robinson,  198  Pa.  638  634 

Fielder  v.  Maxwell,  2  Blatch. 

(U.  S.  C.  C.)   552 504,  515 

Fields  v.  Stokley,  99  Pa.  St. 

306   180,  202 

Finley  v.  Territory,  12  Okla. 

621    452 

Fire  Insurance  Co.  v.  Keesville, 

148  N.  Y.  46 690 

First  National  Bank  v.  Mount 

Tabor,   52  Vt.   87 395 


ARE   TO   PAGES] 

Fisher  v.  McGirr,  1  Gray,  1 . .  498 
Fitzgerald  v.   Harms,   92   111. 

372    123 

Fitzsimmons  v.  Brooklyn,  102 

N.  Y.   536    378,  453,  454 

Flanagan  v.  Hoyt,  36  Vt.  565  507 
Fleming,  Ex  parte,  4  Hill,  581  540 
Fletcher    v.    Peck,    6    Cranch, 

136    248 

Fletcher    v.   Rhode    Island,    5 

How.    504    269 

Fletge  v.  Priest,  53  Mo.  540.  537 
Flori  v.  St.  Louis,  69  Mo.  341 .  522 
Floyd    Acceptances,     The,     7 

Wall.   680    509 

Foltz  v.  Kerlin,  105  Ind.  221. . 

358,  413,  414,  415 

Fong    Yue    Ting    v.     United 

States,  149  U.  S.  711 194 

Forbes    v.    Escambia    County 

Bd.  of   Health,  28   Fla.  26, 

13    L.    R.    A.    549 

502,   593,   602,   613 

Ford  v.  Parker,  4  Ohio,  576.  .  507 
,Forrestal  v.  People,  3  111.  App. 

470     473 

Fort   Wayne   v.   Coombs,  107 

Ind.  75   523 

Fort  Wayne  v.  Lehr,  88  Ind. 

62    452 

Fort  Wayne  v.  Rosenthal,  75 

Ind.    156 400,  639 

Foster    v.    Neilson,   2    Peters, 

314    247 

Fox  v.  McDonald,  101  Ala.  51; 

21  L.  R.  A.  529;  13  South. 

416   110,  383 

Fox  v.  Richmond,  40  S.  W.  R. 

251    526 

Frankfort  v.  Irwin,  72  N.  E. 

652    628 

Franklin  v.  Butcher,  129  S.  W. 

428    644 

Franklin   Wharf   v.   Portland, 

67  Me.  46    713 


INDEX   OF    CASES 


807 


[references 
Frederickson  v.  Louisiana,  23 

How.    445    252 

Freeman    v.  Kenny,    15   Pick. 

44    503 

Freeman  v.  Otis,  9  Mass.  272.  511 
Freeport  Water   Co.  v.   Free- 
port,  180  U.  S.  587 687 

French  v.  Barber  Asphalt  Pav. 

Co.,  181  U.  S.  324 186 

French  v.  Barre,  58  Vt.  567.   539 
French   v.   Taylor,   199   U.   S. 

274    187 

Frost  v.  Aylesbury  Dairy  Co., 

74  L.  J.  K.  B.  386 647 

Frost  v.  People,  193  111.  635.  .    202 


Gage  v.  Currier,  4  Pick.  399. .  503 
Gaines  v.  Waters,  64  Ark.  609  225 
Gale  v.  Kalamazoo,   23  Mich. 

344    361 

Garden    City    v.    Abbott,    34 

Kan.  283    337 

Gardner  v.  Bonestell,  180  U.  S. 

362    138,  275 

Gardner  v.  Michigan,  199  U.  S. 

325    181,  206,  341 

Garfield  v.  Allison,  211  U.  S. 

264    144 

Garfield  v.  Goldsby,  211  U.  S. 

249    144 

Garland,  Ex  parte,  4  Wall.  333  198 
Garland  Novelty  Co.  v.  State, 

71  Ark.   138    202 

Garvie  v.  Hartford,  54  Conn. 

440    445 

Garza,  Ex  parte,  28  Tex.  App. 

381    662 

Gates  v.  Delaware  County,  12 

Iowa,  405 481,  482 

Gaw  v.  Ashley,  195  Mass.  173  400 
Geer  v.  Connecticut,  161  U.  S. 

519    200 

Geneva    v.    New    York    State, 

128  N.  Y.  S.  470 621 


ARE   TO   PAGES] 

Gibbons  v.  Ogden,  9  Wheat. 
1     320,  322 

Gibbs  v.  Morgan,  39  N.  J.  Eq. 
126     419 

Gibson  v.  Steamer  Madras,  5 
Ha.  109    572 

Gilbert  v.  Hoffman,  66  Iowa, 
205     644 

Gildersleeve  v.  Board  of  Edu- 
cation, 17  Abb.  Pr.  201 

396,  397,  398 

Giles  v.  Walker,  24  Q.  B.  D. 

656    228 

Gill  v.  Appanoose  County,  25 

N.   W.    908 623 

Gilman  v.  Laconia,  55  N.  H. 

130    522 

Gilman     v.     Philadelphia,     3 

Wall.   713 158,  320 

Gilmore    v.    Lewis,    12    Ohio, 

281    446 

Giozza  v.  Turman,  148  U.  S. 

657    217 

Glavie   v.  United  States,  182 

U.   S.    595 446 

Glenwood  Springs  v.  Glenwood 

Light    and  Water  Co.,   202 

Fed.    678 687 

Glover  v.  Board  of  Education, 

14  S.  D.  139 635 

Goetcheus  v.  Matthewson,  61 

N.  Y.  420 503 

Goettman   v.    Mayor,    6    Hun, 

132    414 

Goetze  v.  United  States,  182 

U.  S.  221   195 

Golden  v.  Health  Dept.  New 

York,  47  N.  Y.  Supp.  623 . .  142 
Goldsehmid       v.       Tunbridge 

Wells,  L.  R.  1  Eq.  161. 713 

Gonzales  v.  Williams,  192  U. 

S.    1    195 

Goodell,  In  re,  48  Wis.  693 .. .  406 
Goodson   v.  Detroit   Board   of 

Health,  72  N.  W.  185 431 


808 


INDEX   OF    CASES 


[REFERENCES 

Gordon  County  Commissioners 

v.  Harris,  81  Ga.  719 446 

Gorham  v.  New  Haven,  66  Atl. 

505    705 

Goshen  v.  Stonington,  4  Conn. 

209  354 

Goud  v.  Portland,  96  Me.  125  452 
Gould  v.  Glass,  19  Barb.  179.  379 
Gould,  78  Conn.  242; 

61   At.  604    790 

Rochester,  105  N.  Y. 

46    524 

United  States,  19  Ct. 

of  Claims,  593   384 

Gow  v.  Gans  S.  S.  Line,  174 

Fed.  215    . 588 

Grace    v.    Newton    Board    of 

Health,  135  Mass.  490 212 

Grand  Rapids  v.  Braudy,  105 

Mich.  670    175 

Grand  Rapids  v.  DeVries,  123 

Mich.  570 340,  714 

Graves  v.  Bloomington,  17  111. 

App.  476    174 

Graves  v.  Paducah,  89  S.  W. 

708  429 

Gray  v.  Building  Trades  Coun- 
cil,  91   Minn.   171 197 

Gray  v.  Connecticut,  159  U.  S. 

77    , .   238 

Green  v.  Miller,  6  Johns   (N. 

Y.),  39  395 

Greenbay,  etc.,  v.  Patten  Pa- 
per Co.,  172  U.  S.  58 186 

Greencastle        Township        v. 

Black,  51  Ind.  565 81 

Greensborough   v.   Ehrenreich, 

80    Ala.    579 172,  175,  713 

Greenwood  v.  State,  17  Ark. 

332  467 

Gregory  v.  New  York,  113  N. 

Y.  416    491 

Grider  v.  Tally,  77  Ala.  422..  500 
Grieble  v.  State,  111  Ind.  369 

423,  534 


ARE   TO  PAGES] 

Grindley  v.  Barker,  1  Bos.  & 

Pul.   229    394 

Grogan,  In  re,   24  N.  Y.   St. 

473;  5  N.  Y.  Supp.  499 475 

Grossman  v.  Oakland,  37  L.  R. 

A.  593    225 

Guckenheimer    v.    Sellers,    81 

Fed.    997    294,  295,  296 

Gulick  v.  New,  14  Ind.  93...  491 
Gundling  v.  Chicago,   176  111. 

340    334,  662,  763 

Gundling  v.  Chicago,  177  U.  S. 

183     660,  662 


H 


Haag  v.  City  of  Mt.  Vernon, 

58   N.   Y.   S.    585;    41   App. 

Div.  366 241 

Hadley   v.   Mayor,   33   N.   Y. 

603    379 

Hager  v.  Catlin,  18  Hun,  148.  366 
Haight  v.  Love,  39  N.  J.  L.  14  441 
Hale  v.  Evans,  12  Kas.  562. . .  421 
Hale  v.  Houghton,  8  Mich.  458  689 

Hall,  In  re,  50  Conn.  131 406 

Hall  v.  DuCuir,  95  U.  S.  485 .  .   306 

Luther,  13  Wend.  491  415 

State,  39  Wise.  79 .  . .  455 

Hallgren  v.  Campbell,  82  Mich. 

255    537 

Hamlin  v.  Dingman,  5  Lans. 

61    415 

Hamlin   v.  Kassafer,    15   Ore. 

456     372,  374 

Hammond  v.  Hyde  Park,  80  N. 

E.   650    637 

Handley      v.      Kansas      City 

Southern  Ry.  Co.,  187  U.  S. 

617    279 

Hannibal  &  St.  J.  R.  R.  Co. 

v.  Husen,  5  Otto,  465. .  .93,  135, 

176,  196,  215,  308,  326,  590,  594 
Hardin  v.  Colquitt,  63  Ga.  588  388 
Hardy  v.  Hopkins,  59  Md.  157.472 


INDEX   OF    CASES 


809 


[REFERENCES 

Harmon,  In  re,  43  Fed.  372. . 

295,  296 

Harrington  v.  Fuller,   18  Me. 

277    515 

Harrington   v.   Providence,  20 

R.   I.    223 234,  697 

Harris  v.  Cox,  D.  C.  Law,  No. 

53015    634 

Harris  v.   United  States,  227 

U.   S.   340    277 

Harrison   v.   Mayor   of  Balti- 
more, 1  Gill,  264 

164,  203,  592,  601,  609,  610,  613 
Hartford  v.  Bennett,  10  Ohio, 

441     414 

Hartman    v.    Wilmington,    41 

Atl.  74;    1  Marv.  215.. 215,  224 
Harvey  v.  Dewoody,  18  Ark. 

252    618 

Haskell  v.  New  Bedford,  108 

.  Mass.  208   524,  713 

Has  well  v.   Mayor,  81   N.  Y. 

255     436 

Hatch  v.  Mann,  15  Wend.  44 

446,  452 

Hatwood  v.  State,  18  Ind.  492  196 
Hauenstein  v.  Lynham,  100  U. 

S.  483   251 

Haupt's  Appeal,  125  Pa.  211.  689 
Haverhill  v.  Marlborough,  187 

Mass.  150    610 

Haverty  v.  Bass,  66  Me.  71. . 

164,  601 

Having  v.  Covington,  78  S.  W. 

431     517,  607 

Hawker  v.  New  York,  170  U. 

S.  189...  198,  200,  665,  666,  677 
Hawthorne  v.  Cherokee  Coun- 
ty, 79  Kas.  295 623 

Hawver  v.  Seldenridge,  2  W. 

Va.   274    374 

Hayden  v.  Noyes,  5  Conn.  391  339 
Hayes  v.  Porter,  22  Me.  371.  500 
Hays    v.    Steamship    Co.,    17 

How.    596    503 


ARE   TO   PAGES] 
Hazard  v.  Israel,  1  Binn.  240.    507 
Hazen  v.  Strong,  2  Vt.  427 . .    639 
Health  Department  v.  Dassori, 

159  N.  Y.   245 235 

Hamm,  24  N.  Y.  Supp. 

730    761 

Knoll,  70  N.  Y.  530 . . 

83,  762 

Rector,  145  N.  Y.  32.   211 

Trinity    Church,    145 

N.  Y.  32 198,  235 

Heath,  Ex  parte,  3  Hill,  42..   132 
Hedley    v.    Commissioners,    1 

Blackf.    116    467 

Heilbron,  Ex  parte,  65  Cal.  609  174 
Helena    Cons.    Water    Co.    v. 

Steele,  49  Pac.  382 689 

Helland    v.    Bradenstine,    104 

Pac.  626 64 

Hench  v.  State,  72  Ind.  297..   421 
Henderson  v.  Mayor,  92  U.  S. 

259    196 

Henderson  v.  Minneapolis,  32 

Minn.  319    698 

Henderson  v.  Smith,  26  W.  Va. 

829    500 

Henderson    County    Board    of 

Health   v.    Ward,    107    Ky. 

477    605 

Hendricks  v.  Butcher,  129  S. 

W.    431    644 

Hengehold   v.   Covington,    108 

Ky.   752    583,  601 

Hennesy  v.  City  of  St.  Paul, 

37  Fed.  565   617 

Hennon,  Ex  parte,  13  Peters, 

230    ..114,   484 

Hernandez  v.  State,  135  S.  W. 

170 175 

Herrick  v.  Gary,  65  111.  101.   643 
Hersey   v.  Chapin,   162  Mass. 

176    206,  605 

Heslep  v.  Sacramento,  2  Cal. 

580    446 


810 


INDEX   OF    CASES 


[references  are  to  pages] 


Hewett  v.  Woman's  Hospital 

Aid  Ass'n,  64  Atl.  190 .... .    645 
Heyman  v.  Southern  Ry.  Co., 

203   U.   S.   270 291 

Hibben   v.    Smith,    191    U.    S. 

310    186 

Hickman  County  v.  McMorris, 

149   Ky.   1;    147    S.   W.  R. 

768    450,    578 

Hickman  County   v.   Scarbor- 
ough, 149  S.  W.  1116 621 

Highland  v.  Schulte,  82  N.  W. 

62    576 

Hildreth  v.  Mclntire,  1  J.  J. 

Marsh,  206    374 

Hill  v.  State,  1  Ala.  559 387 

Hine  v.  New  Haven,  40  Conn. 

478    202 

Him  v.  State,  1  Ohio,  15 238 

Hitchcock     v.     Galveston,     96 

U.  S.  341 525,  526 

Hobbs  v.  Yonkers,  102  N.  Y. 

13    446 

Hoboken  v.  Gear,  27  N.  J.  L. 

265    436 

Hodges,  Ex  parte,  87  Cal.  162 .  642 
Hodges  v.  Buffalo,  2  Denio,  110  525 
Hodgson  v.  Dexter,  1  Cranch, 

343    509 

Hogatt   v.   Bigley,    6   Humph. 

236    499 

Hoke  v.  Henderson,  4  Dev.  1 

470,  488 

Hoke  v.  United  States,  227  U. 

S.    308 277 

Holden  v.   Hardy,   169   U.    S. 

366     172,  756 

Holden  v.  James,  11  Mass.  396 

172,  191 

Holden  v.  People,  90  111.  434.  425 
Holzworth  v.  Newark,  21  Vr. 

85    531 

Hood  v.  Lynn,  1  Allen  (Mass.), 

103    69 

Hooper  v.  Goodwin,  48  Me.  79  374 


Hope  v.  Sawyer,  14  111.  254..  467 
Horton  v.  Garrison,  23  Barb. 

176    395 

Horton    v.    Parsons,    37   Hun, 

42    379 

Hover  v.  Barkhoof,  44  N.  Y. 

113    500 

Hovey  v.  Elliott,  167  U.  S.  409  188 
Howard  v.  State,  10  Ind.  99.  422 
Hubbard  v.  Crawford,  19  Kas. 

570     453,  472 

Hubbard   v.    Paterson,    45    N. 

J.   L.   310    761 

Hudmon  v.  Slaughter,  70  Ala. 

546    132 

Huesing  v.  Rock  Island,   128 

111.  465   174 

Huffman  v.  Greenwood  Coun- 
ty, 23  Kas.  281 452 

Hughes     v.     Buckingham,     13 

Miss.    632    420 

Humphrey,  Ex  parte,  10  Wend. 

613     398 

Hunt  v.  Ellisden,  2  Dyer,  152  387 
Hunter    v.    Matthis,    40    Ind. 

356    356 

Hurst    v.    Warner,    102    Mich. 

238     84,  590 

Hutchins  v.  Durham,  137  N.  C. 

68    635,  637 

Hutton  v.   Camden,   39   N.   J. 

L.    122    207,  234 

Hyde  v.  State,  52  Miss.  665 . . 

490,  534 


Her  v.  Ross,  90  N.  W.  R.  869.  714 
Imler    v.    Springfield,    55    Mo. 

119    523 

Illinois     Trust     and     Savings 

Bank  v.  Arkansas  City,  76 

Fed.   271 526,  689 

Indianapolis  v.  Beiler,  138  Ind. 

30     173,  661 


INDEX   OF    CASES 


811 


[references 
Inhabitants   of  Watertown  v. 

Mayo,   109   Mass.   515 174 

Inman  v.  Tripp,  11  R.  I.  520.  524 
Iosco  v.  Waseco  County,  100 

N.  W.  734   . . , 620 

Iowa  v.  Kirby,  120  Iowa,  26.  .  583 
Iowa  Central  R.  Co.  v.  Iowa, 

160  U.  S.  389 186,  187 

Isenhour  v.  State,  157  Ind. 

517  211 

Ives   v.    Soutb  Buffalo   R.   R. 

Co.,  201  N.  Y.  292 134 

Ivy  v.  Lusk,  11  La.  Ann.  486  385 


J 

Jackson  County  v.  Brush,  77 

111.  59  209 

Jackson  v.  State,  117  S.  W. 

818  676 

Jacobs,  In  re,  98  N.  Y.  98 765 

Jacobs   v.   Elmira,    132   N.   Y. 

Supp.  54    430,  627 

Jacobson      v.     Massachusetts, 

197  U.  S.  11 322,  634,  665 

James    v.    Commonwealth,    12 

S.  &  R.   (Pa.)   220 147 

Jameson  v.  People,  16  111.  257  71 
Japanese     Immigration     Case, 

189  U.  S.  86 193,  194,  275 

Jay  County  v.  Fertich,  46  N". 

E.  699 623 

Jefferson  County  v.  Slagle,  66 

Pa.  St.  202 395 

Jenkins     (People     in     re)      v. 

Board  of  Education,  234  111. 

422 51 

76,  167,  176,  336,  344,  635,  636 
Jenkins  v.  Waldron,  11  Johns. 

114    500 

Jeter  v.  State,  1  McCord    (S. 

C),  233    387 

Jew    Ho    v.    Williamson,    103 

Fed.  10   33,  204,  586 


ARE   TO   PAGES] 
Jewett  v.  Alton,  7  N.  H.  253 .  .    395 
Johannerson  v.  United  States, 

225  U.  S.  227 421 

Johnson  v.  District  of  Colum- 
bia, 27  App.  D.  C.  259.  .559,  598 

Drew,  171  U.  S.  93.138,  275 

Dodd,  56  N.  Y.  76.  .  .    395 

Lovett,  65  Ga.  716. .  .   437 

Simonton,  43  Cal.  242  172 

Wilson,  2  N.  H.  202. . 

385,   387,   399 

Johnston  v.  Belmar,  13  Dick. 

354   371,  761 

Johnston  v.  District  of  Colum- 
bia, 118  U.  S.  19 522 

Jones    v.    Jefferson,    66    Tex. 

576   425,  482 

Jones  v.  Shaw,  15  Tex.  577. .  .  455 
Jordan,  In  re,  37  Minn.  174.  .  .  421 
Jordan  v.  Benwood,  42  W.  Va. 

312  524,  698 

Jordan   v.  Hanson,   49   N.  H. 

199    499 

Judge  v.  Meriden,  38  Conn.  90 

522 

Justices  v.  Clark,  1  T.  B.  Mon. 
(Ky.)    82    387 


Kaiahua,  In  re,  19  Ha.  218. .  .  584 
Kansas  v.  Colorado,  185  U.  S. 

125;  206  U.  S.  46 709 

Kansas  City  v.  Baird,  92  Mo. 

App.  204 560,  598 

Kaufman    v.    Stone,    25    Ark. 

336   419 

Keefe  v.  Union,  56  Atl.  571. . 

370,  574,  623 

Keeler  v.  Frost,  22  Barb.  400.  395 
Keen  v.  Coleman,  39  Pa.  299. .  525 
Keenan  v.  Perry,  24  Tex.  253 

419,  484,  487 

Keenan    v.    Southworth,    110 

Me.  474    515 


812 


INDEX  OF   CASES 


[references 
Keever  v.  Mankato,  113  Minn. 

55 330,  521,  647,  691 

Kehn  v.  State,  93  N.  Y.  291. .  437 
Keihl  v.  South  Bend,  76  Fed. 

921    689 

Kellogg  v.  St.  George,  28  Me. 

255    623 

Kelly   v.   Wimberly.    61   Miss. 

548 377,  478,  540 

Kempster    v.    Milwaukee,    97 

Wis.  345;  79  N.  W.  411 

406,  515,   516 

Kennedy  v.  Board  of  Health, 

2  Pa.  366 204,  584 

Kennedy  v.  Phelps,  10  La.  Ann. 

227    174,  689 

Kennedy   v.   Ryall,   67   N.  Y. 

379    614 

Kentucky     v.     Dennison,     24 

How.  66  706 

Kerr  v.  Jones,  19  Ind.  351..  .  358 
Kerr  v.  Simmons,  82  Mo.  269.  714 
Kerr  v.  Trego,  47  Pa.  St.  292.  388 
Kidd  v.  Pearson,  128  U.  S.  1. .  301 
Killey  v.  Forsee,  57  Mo.  390. .  386 
Kimball  v.  Marshall,  44  N.  H. 

465    397,  399 

Kimmish    v.    Ball,    129   U.    S. 

217    326 

King,  The,  v.  Tong  Lee,  4  Ha. 

335    764 

King  v.  Davenport,  98  111.  305 

180,  202 

King  v.  Kansas  City,  58  Kas. 

334   522 

King  v.  Whitwell,  5  T.  R.  85 .  533 
King   County  v.  Mitchell,   71 

S.  W.  610 620 

Kinlock,  In  re,  165  U.  S.  535.  79 
Kinmundy   v.   Mayor,   72    111. 

463     661 

Kinsey  v.  Sherman,  46  Iowa, 

463    437 

Kinsley  v.  Chicago,  124  111.  359  763 


ARE   TO  PAGES] 
Kirby   v.  Harker,    121   N.  W. 

1071    502 

Kirk  v.  Wyman,  65  S.  E.  R. 

(S.  C.)   387 

164,  208,  364,  581,  609 

Kirkland  v.  Matthews   (Tex.), 

162  S.  W.  375 649 

Kirkwood    v.    Smith,    9    Lea 

(Ky.)    228    670 

Kirkwood  v.  Soto,  87  Cal.  394  439 
Kirtland  v.  Hotchkiss,  100  U. 

S.  491   186 

Klopfer  v.  Board  of  Health,  9 

N.  P.  S.  O.  33 371 

Knauer   v.  Louisville,   20  Ky. 

L.  R.  193;  41  L.  R.  A.  219.. 

181,  713 

Knight  v.  Clark,  48  N.  J.  L.  22  509 
Knightstown  v.  Homer,  75  N. 

E.   13    619 

Knobloch   v.    Chicago,   Mil.   & 

St.  P.  Ry.  Co.,  31  Minn.  402  739 
-    Kollock   v.   Stevens  Point,   37 

Wis.  348   517,  606 

Kosciusco     v.     Stomberg,     68 

Miss.  469    175,  336 

Kosmak  v.  New  York,  117  N. 

Y.   361    523 

Kranz    v.   Baltimore,    64    Md. 

491    522 

Kreser  v.  Lyman,  74  Fed.  765.    157 

Krug,  In  re,  19  Fed.  308 186 

Kuhn  v.  Brownfield,  34  W.  Va. 

252    551 

Kwong  Lee  Yuen  Co.  v.  Man- 
chester Fire  Association,  15 

Ha.  704  617,  771 


Labrie  v.  Manchester,  59  N.  H. 

120    628 

Lacey,  Ex  parte,  108  Cal.  326  235 
LaCroix    v.    Fairfield    County 

Commissioners,      50      Conn. 

321   537 


INDEX   OF    CASES 


813 


[references 
Landberg  v.  Chicago,  237  111. 

112   

139,  176,  181,  206,  337,  341,  714 
Lange  v.  Benedict,  73  N.  Y.  12 

499,  503 

LaPorta   v.   Board   of  Health, 

42   Vr.   88 676 

Larew  v.  Newman,  81  Cal.  588  440 
Lasher  v.  People,  183  111.  226 

381,  382,  668,  669 

Laubaugh  v.  Board  of  Educa- 
tion, 66  111.  App.  159 596 

Laubaugh  v.  Board  of  Educa- 
tion, 177  111.  572 635 

Laugel  v.  Bushnell,  197  111.  20 

228,  229 

Laurel  County  Court  v.  Pen- 

ington,  26   Ky.  Law,   124 . .    623 
Lawrence,   Ex  parte,   1    Ohio, 

431   455 

Lawrence    v.    Commonwealth, 

127  S.  W.  1013 644 

Lawrence     v.     McAlvin,     109 

Mass.   311    516 

Lawton   v.   Steele,   119  N.  Y. 

226    180,  237 

Lawton   v.   Steele,   152   U.   S. 

133    181,  237,  634 

Leach  v.  People,  122  111.  240..  375 
Leavenworth     v.     Brewer,     9 

Kas.   307    452 

LeConte    v.    Berkley,    57    Cal. 

269    537 

Lee  v.  Marsh,  230  Pa.  351.  .  .  .  639 
Lee  v.  Munroe,  7  Cranch,  366.  509 
Leech  v.  State,  78  Ind.  570.  .  .  481 
Leeper  v.  Texas,  135  U.  S.  712  191 
Legal  Tender  Cases,  12  Wall. 

457 260 

Leisy  v.  Hardin,  135  U.  S.  100 

282,  287,  289,  294,  308 

Leitch   v.   Wentworth,   71   111. 

147   538 

Lem    Moon    Sing    v.    United 
States,  158  U.  S.  538.. 193,  195 


ARE   TO   PAGES] 
Leovy   v.   United   States,    177 

U.  S.   621 158,  324 

Lewis  v.  Lewis,  9  Mo.  183 .  361,  670 
Lewis  v.  Webb,  3  Greenl.  326.  191 
Lieberman  v.  Van  De  Carr,  199 

U.  S.  552 748 

License    Tax    Cases,    5    Wall. 

462    176,   342,  650 

License  Cases,  5  How.  504 .  269,  308 
Lincoln  Land  Co.  v.  Village  of 

Grant,  57  Neb.  70 526 

Littlefield    v.    State,    42    Neb. 

223    655 

Lochner  v.  New  York,  198  U. 

S.  45   757 

Locke  v.  Central  City,  4  Colo. 

65    436 

Lockwood  v.  Bartlett,  130  N. 

Y.  340 614 

Loeasch  v.  Koehler,  144  Ind. 

278  207,  234 

Logan  v.  Child,  41  So.  197.103,  699 
London   v.   Headon,   76  N.   C. 

72    414 

London,  etc.  Land  Co.  v.  Jel- 

lico,  103  Tenn.  320 525 

Londoner  v.  Denver,  210  U.  S. 

386    218 

-  Long  v.  Chicago,  K.  &  W.  Ry. 

Co.,  15  L.  R.  A.  319 644 

Long  v.  Duluth,  49  Minn.  280 

340,    714 

Longacre  v.  State,  3  Miss.  637  478 
Los    Angeles    Co.   v.    Spencer, 

126  Cal.  670 202 

Loughborough     v.     Blake,     5 

Wheat.  317   265 

Louisa     County    v.    Yancey's 

Trustee,  109  Va.  229 616 

Louisiana  v.  Texas,  176  U.  S. 

1 576,  587 

Louisville,  etc.  Ry.  Co.  v.  Mis- 
sissippi, 133  U.  S.  587 306 

Louk  v.  Woods,  15  111.  256.  .  .    394 


814 


INDEX   OF    CASES 


[REFERENCES 

Louriston  v.  Chippewa  County, 

93   N.   W.    1053 620 

Love  v.  Atlanta,  95  Ga.  129..    516 

Low  v.  Towns,  8  Ga.  360 388 

Low,  et  al.  v.  Austin,  80  U.  S. 

29 283,  286,  287,  290,  293 

Lowe,  In  re,  54  Kas.  759;  27 

L.  R.  A.  545 714 

Lowe  v.  Commissioners,  3  Met. 

237    486 

Lowe  v.  Conroy,  97  N.  W.  R. 

942;  120  Wis.  151.234,  513,  518 
Lowther  v.  Earl  of  Radnor,  8 

East,    113    503 

Low  Wah  Suey  v.  Backus,  225 

U.    S.   460 138,  278,  283 

Lozin    v.    Newark    Board    of 

Health,  48  N.  J.  L.  452 371 

Lucas,  Ex  parte,  61  S.  W.  218 .  676 
Ludlow    v.    Ritchie,     25    Ky. 

1581 446 

Luzerne    Co.    v.    Trimmer,    95 

Pa.   97    388 

Lynde  v.  Rockland,  66  Me.  309  609 
Lyth  v.  Buffalo,  48  Hun,  175.   362 

M 

Mabry    v.    Baxter,    11    Heisk 

(Tenn.)  682 166 

Macomber   v.  Doane,  2  Allen, 

541    464 

Macon  v.  Bibb   County,  75  S. 

E.   435    622 

Magee   v.    Brooklyn,    18    App. 

Div.  22   523 

Mahr  v.  Pottawatomie  County, 

110    Pac.    751 619 

Mallory     v.     Supervisors,     2 

Cowen,  531    452 

Mallett  v.  Uncle  Sam  G.  Co., 

1  Nev.   188 376 

Manhattan  v.  Hessin,  105  Pac. 

44    226,   538,  609 

Manigault  v.   Springs,   199  U. 

S.  473   324 


ARE   TO   PAGES] 

Mankato   v.   Blue    Earth   Co., 

92   N.   W.   405 629 

Mann  v.  Willey,  168  N.  Y.  664,  700 
Manning  v.   Bruce,   186  Mass. 

282     608,  609 

Mansfield  v.  Balliett,  65  Ohio, 

450    524 

Marbury  v.  Madison,  1  Cranch, 

137 387,  392,  399,  424 

Marion  v.  Chandler,  6  Ala.  899  335 
Marion  County  v.  Bonds,  99  S. 

W.  532   625 

Marion  County  v.  Woulard,  27 

So.  619   624 

Marmet  v.  State,  45  Ohio,  63 ,  172 
Marsh   v.   Fulton   County,    10 

Wall.  676  526 

Marsh  v.  Rosen  County,  101  N. 

W.  164   623 

Marshall  v.  Caldwalder,  36  N. 

J.  L.  283 80 

Marshall   County   v.  Johnson, 

127  Ind.  238 445 

Martin  v.  Brooklyn,  1  Hill.  550  517 
Fond  du  Lac  County, 

106  N.  W.  1095 421 

Hunter,  1  Wheat.  326  260 

Montgomery    County, 

27  Ind.  App.  98 621 

Mason  v.  Shawneetown,  77  111. 

533     80 

Massie  v.  Cesna,  239  111.  352.  197 
Mathews  v.  Board  of  Educa- 
tion, 127  Mich.  530 635,  636 

Mathias  v.  Lexington  County, 

60  S.  E.  970 639 

Matthews  v.  Hedlund,  82  Neb. 

825    198 

Matthews   v.   People,   202   111. 

389    197 

Matthews    v.    Supervisors,    53 

Miss.  715 454 

May  v.  New  Orleans,  178  U.  S. 

496    294,  295 

Mayer  v.  Chicago,  38  111.  266.    527 


INDEX   OF    CASES 


815 


[references  are  to  pages] 
Mayfield  v.  Moore,  53  111.  428.   378      McCulloch     v.     Maryland,     4 


Mayor  v.  Eschbach,  18  Md.  283  509 

Mayor  of  Baltimore  v.  Rey- 
nolds, 20  Md.  1 509 

Mayor  of  Birmingham  v.  Land, 
137  Ala.  538 524 

Mayor  of  Jersey  City  v.  Flynn, 
74  N.  J.  Eq.  104 vi,  520,  688 


Wheat.  316   260 

McCurdy    v.  Rogers,   21   Wis. 

197    510 

McDermott  v.  Wisconsin,  228 

U.  S.  115 269 

McDonald   v.  Franklin  Co.,  2 

Mo.  218    511 


Mayor  v.  Kelley,  98  N.  Y.  467 .   445      McGee  v.  Gill,  79  Ky.  106 ...  .   424 


Mayor    of    Penryn,    In   re,    1 


McGee  v.  State,  103  Ind.  444.   537 


Stra.  582   534      McGregor  v.  Allen,  33  La.  Ann. 


Mays    v.    Cincinnati,    1    Ohio, 


870 


478 


268 


337      McGregor   v.  Boyle,   34  Iowa, 


Maywood  Co.  v.  Maywood,  140 

111.  216 698 

McAllister,  In  re,  51  Fed.  282 


268    647,  691,  700 

McGregor    v.    Supervisors,    37 
Mich.  388    488,  539 


292,  295      Mclnstry  v.  Tanner,  9  Johns. 


McAllister    v.    State,    72    Md. 

390    729 

McAnnally  v.  Goodier,  195  Mo. 


135     273 

Mclntire   v.  Pembroke,  53  N. 
H.  462    623 


551    214      McKenzie  v.  Royal  Dairy,  35 


McBride  v.  Akron,  12  Ohio  Cir. 

Ct.  R.  610 ....    523 

McBride  v.  Detroit,  47   Mich. 


Wash.   390    497,  501 

McKibben   v.   Fort   Smith,  35 
Ark.   325    37 


236;  s.c.  49  Mich.  239 452      McKim    v.    Somers,    1    Penn. 


McBride  v.  Grand  Rapids,  47 

Mich.  236   452 

McCann  v.  Commonwealth,  198 


297    478 

McKinney    v.   Salem,   77   Ind. 
213    238 


Pa.   509    729      McLean  v.  Arkansas,   211   U. 


McCarthy  v.  DeArmit,  99  Pa. 

63    364 

McCartney  v.  Philadelphia,  22 

Pa.  Super.  Ct.  257 523 

McCarty   v.   Froelke,    63    Ind. 

507    405 

McClentics   v.   Bryant,    1   Mo. 

598    511 


S.  539 134 

McMillan  v.  Anderson,  95  U. 

S.  37 214 

McMillan     Co.     v.    Minnesota 

State  Bqard  of  Health,  110 

Minn.  145   211,  532 

McNevins  v.  Lowe,  40  111.  209 

551,  552 


McComas  v.  Krug,  81  Ind.  327  475      McSween  v.  School  Board,  129 


McCord  v.  High,  24  Iowa,  336 


S.  W.  206 634,  635 


501,  504      McTeer    v.    Lebow,    85    Tenn. 


McCoy  v.  Curtice,  9  Wend.  17  396 
McCraw  v.  Williams,  33  Gratt. 

(Va.)    510    374 

McCue  v.  Wapello  County,  56 

Iowa,  698  454 


121 499 

Mead  v.   Treasurer,   36  Mich. 

416   489 

Meadows    v.    Nesbit,    12    Lea, 

489    540 


816 


INDEX  OF   CASES 


[REFERENCES 

Meeker  v.  Van  Rensselaer,  15 

Wend.  397   233 

Mellody  v.  Missouri,  K.  &  T. 

Ry.  Co.,  124  S.  W.  702 644 

Melton  v.  Mayor,  114  Ga.  462.  238 
Memphis   v.  Brown,  20  Wall. 

289    446 

Memphis  v.  Smythe,  58  S.  W. 

215    - 574 

Memphis    v.     Woodward,     12 

Heisk,  499  378 

Merrill  v.  Berkshire,  11  Pick. 

(Mass.)  268  394 

Merrill  v.  Humphry,  24  Mich. 

170    358 

Merritt   v.   Walsh,  104  U.  S. 

694    79 

Merty  v.  Columbus,  27  0.  Cir. 

Ct.  R.  822 623 

Metcalf  v.  St.  Louis,  11  Mo. 

102    591 

Metropolitan     Bank     v.     Van 

Fyck,  15  Smith  (N.  Y.),  508  267 
Metsker  v.  Neally,  41  Kas.  122  491 
Metzger,  In  re,  1  Parker  Cr.  R. 

(N.  Y.)    108 249 

Meyer  v.  Bishop,  27  N.  J.  Eq. 

141    467 

Meyer  v.  Patterson,  28  N.  J. 

Eq.  239 467 

Meyers  v.  Clarke,  122  Ky.  866  371 
Miles  City  v.  State  Board  of 

Health     (Mont.),    102    Pac. 

696    213,  706 

Miller  v.  Burch,  32  Tex.  208. .   236 

Horton,  152  Mass.  540 

164,   180,  182,  203, 

204,  205,  207,  234,  235,  512,  586 
State    (Miss.)    63   So. 

269    672 

Supervisors,    25    Cal. 

93   483 


Supervisors,  88  111.  26  539 

Miller    &    Meyer    v.    Newport 
News,  101  Va.  432 524 


ARE   TO   PAGES] 

Millett  v.  People,  117  111.  294.   217 
Milligan,  Ex  parte,  4  Wall.  120 

50,     51 

Milliken    v.    Weatherford,    54 

Tex.  388   335,  339 

Mills   v.   Brooklyn,   32   N.   Y. 

489   522,  698 

Milner  v.  Reibenstein,  85  Cal. 

593    439 

Milnes  v.  Huddersfield,  L.  R. 

10  Q.  B.  D.  124 

330,  521,  647,  690,  691 

Minister  of  Interior  v.  Hack- 
field  &  Co.,  4  Ha.  420 630 

Minkler  v.  State,  14  Neb.  181 

474,  476 

Minneapolis,    St.    P.   &    S.    S. 

M.    Ry.    Co.    v.    Milner,    57 

Fed.  276  589 

Minnesota   v.   Barber,   136   U. 

S.  313 '. .  . .  176,  216,  327,  594 

Minor    v.    Sharon,    112    Mass. 

477    644 

Minturn  v.  Larne,  23  How. 

435  686 

Missouri  v.  Illinois  and  San. 

Dist.  of  Chicago,  180  U.  S. 

208    707 

Missouri,  K.  &  T.  Ry.  Co.  v. 

Raney,  99  S.  W.  589 644 

Missouri,  K.  &  T.  Ry.  Co.  v. 

U.  S.,  231  U.  S.  112 760 

Missouri,  K.  &  T.  R.  R.  Co.  of 

Texas  v.  Wood,  68  S.  W.  802  646 
Missouri  Pac.  R.  Co.  v.  Humes, 

115  U.  S.  512 186 

Mitchel   v.   Horton,   75    Iowa, 

271    397 

Mitchell  v.  Harmony,  13  How. 

115    156 

Mitchell  v.  Rockland,  41  Me. 

363;    45    Me.   496;    52   Me. 

118    608 

Mobile  v.  Louisville,  etc.  R.  R. 

Co.  84  Ala.  115 536,  538 


INDEX  OF   CASES 


817 


[references 
Mohan  v.  Jackson,  52  Ind.  599  372 
Monroe  v.  Bluff  ton,  67  N.  E. 

711   628 

Montgomery  v.  Gilmer,  33  Ala. 

116    522,  698 

Montgomery  v.  Hutchinson,  13 

Ala.  573   233 

Montgomery  v.  LeSuer  Co.  32 

Minn.   532    620 

Montgomery  County  v.  Brom- 
ley, 108  Ind.  158 452 

Moore  v.  Indianapolis,  120  Ind. 

483 238 

Moore  v.  New  York,  73  N.  Y. 

238     525 

Morgan,  In  re,  26  Col.  415;  47 

L.  R.  A.  52 757 

Morgan    v.    Quackenbush,    22 

Barb.  72 132 

Morgan's     Steamship     Co.     v. 

Louisiana    State    Board    of 

Health,  118  U.  S.  455 

324,  594,  600 

Morrill  v.  Jones,  106  U.  S.  466 

79,  167 

Morris   v.  Columbus,   102  Ga. 

792;  42  L.  R.  A.  175 

343,  634,  635,  636 

Moss   v.  Cummings,  44  Mich. 

359   499 

Mostyn  v.  Fabrigas,  1  Smith 

Lead.  Cas.  1027 499 

Moulton  v.  Reid,  54  Ala.  320.  539 
Mouse's  Case,  12  Rep.  63.156,  206 
Muhlenbrick  v.  Com.,  44  N.  J. 

L.  365    173,  661 

Mulhall  v.  Quin,  1  Gray,  105 .  .  464 
Mullen    v.   Mosley,    13    Idaho, 

457    202 

Muller  v.   Oregon,   208   U.   S. 

412   173,  759 

Munk  v.  Frink,  75  Neb.  172; 

106  N.  W.  425 102,  444 

Murphy  v.  People.  2  Cow.  (N. 

Y.)  815 147 


ARE   TO   PAGES] 

Murray  v.  Carothers,   1  Met. 

71    510 

Murray's   Lessee    v.   Hoboken 

Land  Co.,  18  How.  272.  .185,  192 
Murtaugh  v.  St.  Louis,  44  Mo. 

479    618 

Mygatt    v.    Washburn,   15    N. 

Y.  316 503 


N 


Nashville  v.  Comar,  88  Tenn. 

415   523 

Nashville,  Chat.   &   St.   Louis 

R.  Co.  v.  State  of  Alabama, 

128  U.  S.  96 198,  216,  600 

Natal  v.  Louisiana,  139  U.  S. 

621    209 

National    Cotton    Oil    Co.    v. 

Texas,  197  U.  S.  130 186 

Nay  v.  Underhill,  42  Atl.  610.  404 
Neale  v.  Overseers,  5  Watts, 

538   454,  473 

Nelson     v.    Minneapolis,     112 

Minn.  16 178,  739,  746 

People,  33  111.  390...    196 

State     Board    of 

Health,    Ky.,    22   Ky.   Law, 

438;  50  L.  R.  A.  383 668 

State     Board    of 


Health,  186  Mass.  330 532 

Newark,  etc.  R.  Co.  v.  Hunt, 

50  N.  J.  L.  308 203,  234 

Newcastle  v.  Harvey,  102  N. 

E.   R.   878 712 

New  Decatur  v.  Berry,  90  Ala. 

432   574,  592 

Newman  v.  Beckwith,  61  N.  Y. 

205 375 

Newman  v.  Sylvester,  42  Ind. 

112 .  .   509 

New  Orleans  v.  Faber,  105  La. 

Ann.  208    239 

New   Orleans   v.  Finnerty,  27 

La.  Ann.   681 459 


818 


INDEX  OF   CASES 


[REFERENCES 

New   Orleans   v.   Stafford,   27 

La.  Ann.  417 239 

New  Orleans  Waterworks  Co. 

v.  Rivers,  115  U.  S.  674. . . ._  687 
Newsome  v.  Cocke,  44  Miss. 

352    484 

New  York  v.  Miln,  11  Pet.  102  321 
New  York  v.  Squire,  145  U.  S. 

175    198 

New  York  &  Harlem  R.  R.  Co. 

v.  Mayor,    1   Hilt.    (N.  Y.) 

441    372 

New  York  etc.  R.  Co.  v.  Bris- 
tol, 151  U.  S.  556 198 

New  York  etc.  Ry.  Co.  v.  Har- 
bison, 16  Fed.  Rep.  688 511 

New  York,  N.  H.  &  H.  R.  R. 

v.  New  York,  165  U.  S.  628.  324 
Nicholson  v.  Detroit,  129  Mich. 

246    645 

Nickerson  v.  Thompson,  33  Me. 

433    500 

Nicoulin  v.  Lowery,  49  N.  J.  L. 

391    174 

Niles  v.  Muzzy,  33  Mich.  61 . .  452 
Nine  v.  New  Haven,  40  Conn. 

478    180 

Nishimura     Ekiu     v.     United 

States,  142  U.  S.  659 

138,  193,  194,  680 

Noble  v.   St.   Albans,    56   Vt. 

522    700 

Norris,  Ex  parte,  8  S.  C.  408 .  .  472 
North  American  Cold  Storage 

Co.  v.  Chicago,  211  U.  S.  306 

202,  748 

North  Hudson   Co.  R.   Co.  v. 

Hoboken,  41  N.  J.  L.  81 655 

North    Springs    Water   Co.    v. 

Tacoma,  21  Wash.  517 687 

Norton  v.  Shelby  County,  118 

U.  S.  425 374,  498 

Nowell  v.  Wright,  3  Allen,  166  500 
Nowotny  v.  Milwaukee,  121  N. 

W.  658   83 


ARE   TO   PAGES] 


Oakland   (city)    v.  Carpenter, 

13  Cal.  540 499 

Oakley  v.  Aspinwall,  3  N.  Y. 

568    81 

Officer     v.     Young,     5     Yerg. 

(Tenn.)    320    190 

Ogden  v.  Blackledge,  2  Cranch, 

272    73 

Ogden  v.  Raymond,  22  Conn. 

379    509 

Ogg  v.  Lansing,  35  Iowa,  495 

516,  517 

Ohio  v.  Thomas,  173  U.  S.  276  266 
O'Leary,  Ex  parte,  65  Miss.  80  217 
O'Leary  v.  Board  of  Education, 

93  N.  Y.  1 454 

Olmstead  v.  Dennis,  77  N.  Y. 

378    479,  481,  540 

Olney  v.  Pearce,  1  R.  I.  292..  473 
Olsen  v.  Smith,  195  U.  S.  332.  186 
Opinion  of  Judges,  115  Mass. 

602    407 

Opinion  of  Justices,  136  Mass. 

578    407 

Orr  v.  Gillman,  183  U.  S.  278.  217 
Osborn  v.  Bank,  9  Wheat.  783  498 
Osborne    v.   Russell,    64    Kas. 

507    634,  635,  636 

Osgood  v.  Jones,  60  N.  H.  543.  534 
Ostrander     v.     Lansing,     111 

Mich.  693  698 

Oviatt  v.  Pond,  29  Conn.  479.  236 
Owens  v.   Lancaster,   182   Pa. 

257   523,  524 


Pace  v.  People,  50  111.  432 482 

Page  v.  Hardin,  8  B.  Mon.  648 

477,    487,  670 

Palmer,  In  re,  1  Abb.  Pr.  N. 

S.  (N.  Y.)   30 395, 

Paola  R.  R.  Co.  v.  Anderson 

Co.,  16  Kas.  302 394 


INDEX   OP    CASES 


819 


[REFERENCES 

Parke  Davis  &  Co.  v.  Mulford 

Co.,  189  Fed.  R.  95 145,  219 

Parker  v.  Kett,  1  Ld.  Raym. 

658    467 

Parker  v.  Smith,  3  Minn.  240 .  410 
Parsons,  In  re,  54  N.  Y.  451. .  446 
Pasadena    School    District    v. 

Pasadena,  134  Pac.  985 771 

Passenger  Cases,  7  How.  283 

196,    268,  275 

Patton   v.  Vaughan,    39   Ark. 

211    419 

Pearson   v.   Wilson,    57   Miss. 

848    474 

Pearson  v.  Zehr,  138  111.  48.. 

180,  203,  207,  234 

Peart  v.  Meaker,  45  La.  Ann. 

421    156 

Pebbles  v.  City  of  Boston,  131 

Mass.  197 142 

Peck  v.  Bank,  51  Mich.  353. .  452 
Peck    v.    Lockwood,    5    Day 

(Conn.)  22 339 

Peeling  v.  York  Co.,  113  Pa. 

108    442 

Peirce   v.  New   Hampshire,   5 

How.  504 269,  287,  294 

Pembia    Cons.    Silver    Co.    v. 

Philadelphia,  125  U.  S.  181 .  196 
Pendleton  v.  State,  6  Ark.  509  196 
Pennoyer     v.     McConnaughy, 

140  U.  S.  1 160 

Penrice    v.    Wallis,    37    Miss. 

172    156 

People  v.  Addison,  10  Cal.  1. 

425,  426 

Adirondack    Ry.    Co., 

160  N.  Y.  225;  affirmed,  176 

N.  Y.  335 189 

Albertson,    55    N.    Y. 

50   71,  470 

Allen,  42  N.  Y.  384.  .      81 

Angle,  109  N.  Y.  564.    114 

Anthony,  6  Hun,  142  376 

Apfelbaum,  251  111.  18  666 


ARE   TO   PAGES] 

People  v.  Arensberg,  105  N.  Y. 

123  729 

Bank  of  North  Amer- 
ica, 75  N.  Y.  547 670 

Batchelor,     28    Barb. 

310    397 

Batchelor,    22    N.    Y. 

128    395,   396,  397 

Barnes,  114  N.  Y.  317  365 

Barnett    Tp.    100    111. 

332    482 

Bender,  36  Mich.  195 

360,    499 

Biesecker,   169   N.   Y. 

53;  57  L.  R.  A.  178 730,  743 

Bingham,  82  Cal.  238  534 

Bissel,  19  111.  232 160 

Bissell,  49  Cal.  407 .  . 

375,  392,  399,  472 

Blanding,  63  Cal.  333 

289,  401 

Blood,  105  N.  Y.  Supp. 

20 429 

Board  of  Health,  140 

N.  Y.  1 207 

B  o  a  r  d  of  Trustees, 

159  N.  Y.  568 412 

Bradley,    207    N.    Y. 

592    134 

Brady,  90  Mich.  459; 

51  N.  W.  537 556,  598 

—Brooklyn,    77    N.    Y. 

503    413,  415 

Brooks,  16  Cal.  11 .  .  .   462 

Bull,  46  N.  Y.  57.380,  422 

Burnap,  38  Mich.  350  539 

■ Bush,  40  Cal.  344 500 

Callaghan,  83  111.  128 

533,  534 

Cazneau,  20  Cal.  504.   392 

Chapin,   104  N.  Y.  96  365 

Chicago,  256  111.  558.    760 

Chipperly,   101  N.  Y. 

634    736,  742 

Clute,  50  Barb.  451 .  .   414 


820 


INDEX   OF    CASES 


[REFERENCES 

People  v.  College,  62  How.  Pr. 

220    488 

Collins,   7   Johns,    (N. 

Y.)  549 373 

Commissioners,  73  N. 

Y.  437 484 

Conover,  17  N.  Y.  64.  372 

■ Coon,  15  Wend.  277.  160 

Dean,  3  Wend.  438..  417 

DeMill,  15  Mich.  164.   535 

D  epartment      of 

Health,  New  York,  189  N. 

Y.  187 197 

D  e  n  t  a  1  Examiners, 

110  111.  105 365 

Diamond,  76  N.  Y. 

Supp.  57  499 

Draper,  15  N.  Y.  543.  369 

Duane,  121  N.  Y.  367  413 

Dulaney,  96  111.  503.  540 

■ Dunne,  258  111.  441 . .  134 

Durston,   3  N.  Y. 

Supp.  522 114 

Elerding,  254  111.  579  760 

Eno,  82  N.  Y.  520 ..  .  623 

Fancher,  50  N.  Y.  288  390 

■ F  ire   Commissioners, 

114  N.  Y.  67 491 

Fitzsimmons,  68  N.  Y. 

514    386 

■ Flynn,  184  N.  Y.  579.   238 

Foody,  79  N.  Y.  Supp. 

240    499 

Forquer,   1  111.  104.. 

375,    392,  472 

French,  10  Abb.  N.  C. 

(N.  Y.),  418;  25  Hun,  111.. 

240,  490,  491 

French,  102  N.  Y.  583  475 

Freeman,  80  Cal.  233 .    110 

Goddard,  8  Colo.  432.    114 

Gordon  (Mich.),  45  N. 

W.  R.  658 714 

Green,  58  N.  Y.  304.  .    415 

Hall,  104  N.  Y.  170.    393 


ARE   TO   PAGES] 

People  v.  Hammond,   66  CaL 

654    375,   392,  420 

Hanif an,  96  111.  420 .  . 

413,  479 

Harlow,  29  Ind.  43.  . .   451 

Hartwell,   67   Cal.    11 

473,  477 

Hatch,   33  111.  9 540 

Haver  straw      Village, 


43  N.  Y.  135;   11  App.  Div. 


108 


-Hawker,    152    N.    Y. 


444 


199 


234    

People     (Ex     rel     Robin)     v. 

Hayes,  143  N.  Y.  Supp.  325 .  493 
People  v.  Hayt,  66  N.  Y.  606. .   540 

Head,  25  111.  325....   537 

Health      Department, 

24   Week  Dig.   197 490 

Health      Department, 

New  York,  82  N.  E.  187 .  677,  738 

Henry,  236  111.  124..   365 

Hill,  7  Cal.  97... 419,  484 

Holley,  12  Wend.  481  473 

Holtz,   92   HI.   426... 

382,  669 

Hurlburt,     24     Mich. 

44    369 

Hyde    Park,    117    111. 

492    540 

People  in  re  Jenkins  v.  Board 

of  Education,  234  111.  422 . . 

51,  76,  167,  176,  336,  344 

People  v.  Jewett,  6  Cal.  291 ..  .   486 

Judge,  27  Mich.  170.   365 

Kingston  T.  R.  Co.  23 

Wend.  193 473 

Kirk,  119  N.  Y.  862.    694 

Kneissel,  58  How.  Pr. 

(N.  Y.)    404 402 

Knickerbocker,        114 


111.  539 365,  540 

Leonard,  73  Cal.  230.   415 

Lord,  9  Mich.  227... 

380,    393,  423 


INDEX   OF    CASES 


821 


[REFERENCES 

People  v.  Marx,  99  N.  Y.  377 . .  728 

May,  3  Mich.  508 ..  .    113 

Mayor,  51  111.  17 540 

May  worm,     5     Mich. 

146    535 

McAdoo,    110    N.    Y. 

Supp.  432   375,  392 

McKinney,   52    N.    Y. 

57    422 

Middleton,  28  Cal.  608  368 

Miller,  24  Mich.  458 . . 

378,  454 

Miles,  2  Mich.  350. .  .   536 

Mills,  32  Hun,  459.. 

385,  399 

Mizner,   7  Cal.  519..   426 

■ Monroe     County,     18 

Barb.  567    103,  607 

Moore,  73  111.  132 533 

Morrell,      21      Wend. 

563    445 

Mulholland,  82  N.  Y. 

324    172 

Murray,  70  N.  Y.  521  387 

Murray,  5  Hun,  42 . .  .   386 

Murray,  73  N.  Y.  535  376 

New  York  Edison  Co. 

144  N.  Y.  Supp.  707 54,  230 

Nichols,  52  N.  Y.  478 

395,  396 

Norton,  7  Barb.  477.    160 

Nostrand,    46    N.    Y. 

375    379,  415 

O'Keefe,    100    N.    Y. 

572    540 

Orange   County   Road 

Constr.  Co.,  175  N.  Y.  84..  759 
Osborne,   7   Colo.   605 

375,  392 

O'Toole,  164  111.  344.    392 

Oulton,   28   Cal.   44.. 

425,  467 

Palmer,  52  N.  Y.  84.   468 

Partridge,  13  Abb.  N. 

C.    (N.   Y.)    410 475 


ARE   TO   PAGES] 

People  v.  Pease,  27  N.  Y.  45 . .  132 
Police  Board,  46  Hun, 

296    389 

Police  Commissioners, 

20  Hun,  333 475 

Police  Commissioners, 

102  N.  Y.  583 491 

Porter,  6  Cal.  26.481,  483 

Potter,   63  Cal.  127..   474 

Provines,  34  Cal.  520 .    500 

Reid,  11  Colo.  141...   385 

Ridgely,  21  HI.  67 . .  .   535 

Roff,    3     Park    Crim. 

Rep.   216    592 

Rosborough,    14    Cal. 

180    420,  422 

Rose,  225  111.  496 365 

■ Roth,    Court     Special 

Sessions,  City  of  New  York, 

Nov.,  1912 737 

San  Luis  Obispo,  116 

Cal.  617    524 

Schenck,  257  111.  384 

753,  763 

Sewer,     Water,     and 

Street   Com.,   90   App.   Div. 

555;  86  N.  Y.  445 197 

Shurley,     131     Mich. 

177;   91  N.  W.  139 557,  597 

Sipple,  96  N.  Y.  Supp. 

897    429,  490 

Smith,  108  Mich.  527  343 

Smith,  21  N.  Y.  595.    189 

Smith,  208  111.  31...    674 

Smith,  66  N.  W.  382 

754,  763 

Solomon,  46  111.  415.   540 

State     Treasurer,    24 

Mich.  468  537 

Staton,  73  N.  C,  546.   376 

Stowell,  6  Abb.  N.  C. 

456    385,  399 

Supervisors,  20  N.  Y. 

252   402,  403 


822  INDEX  OF   CASES 

[REFERENCES   ARE   TO   PAGES] 

People  v.  Supervisors,  53  Hun,  People  v.  Williams,  189  N.  Y. 

254    364  131   173,758 

Supervisors,    10    Abb.  Wilson,  249   111.   195.      80 

Pr.    233    396      Wilson,  72  N.  C.  155 .   424 

-Supervisors,  12  Wend.  Woodruff,    32    N.    Y. 


237     452  355    385,399 

-Supervisors,     1     Hill,  Yonkers,  140  N.  Y.  1 


362    446  203,  234 

-Sweeting,     2     Johns,  Peoria  v.  Calhoun,  29  111.  317  340 


184    533      Perry  v.  Cheboygan,  55  Mich. 

Tait,    103    N.    E.   R.,  250    436 


750    580      Hyde,   10   Conn.   329.   511 

-Thatcher,    55    N.    Y.  Tynan,  22  Barb.  137.   396 


525    535      Worcester,     6     Gray, 

Thomas,  33  Barb.  287  400  544   522,  698 

-Thornton,     25     Hun,  Perth  Amboy  v.  Smith,  19  N. 


456     114  J.  L.  52 583 

Tieman,  30  Barb.  193  Petersburg  v.  Petersburg 

372,  375,  377,  471  Aqueduct  Co.,  102  Va.  654.    157 

Tilton,  37  Cal.   614..  Petersilea  v.  Stone,  119  Mass. 

375,  392  465     373 

Treasurer,     24     Mich.  Peterson  v.  Carter,  6  Ha.  283 .   630 


468     537  Peterson  v.  Mayor,   17  N.  Y. 

Tyrell,  87  Cal.  475 . .  450    527 

375,   392,426  Peterson   v.   Santa   Rosa,   119 

Van    de    Carr,    81    N.  Cal.  387   524 

Y.  App.  Div.  128 ;  175  N.  Y.  Pettigrew    v.    Evansville,    25 

440;  67  N.  E.  913 172,  738  Wis.  223    524 

—Van  Slyck,  4  Cow.  297  132  Pettingill  v.  Yonkers,  116  N". 

Vilas,  36  N.  Y.  451 . .  .  Y.  558 528 

445,  456  Phelps  v.  Racey,  60  N.  Y.  10 .   201 

Waite,  70  111.  25 533  Philadelphia  v.  Lyster,   3  Pa. 

—Walker,  23  Barb.  304  Sup.  Ct.  475 715 

396,  397  Philadelphia!  Fire  Ass.  v.  New 

Walter,  68  N.  Y.  403.    539  York,  119  U.  S.  110 196 


Wemple,  1-15  N.  Y.  302  Phillips    v.    Mayor,    88   N.   Y. 

(reversing  52  Hun,  414)  ...   439  245    490 

Whitlock,    92    N.    Y.  Phoenix  v.  Clark,  2  Mich.  327 .    537 


191    419,  487,  488  Pierce  v.  Doolittle,  130  Iowa, 

-Whitman,  10  Cal.  38 .    358  333    83 

Willard,  44  Hun,  580.   385  Pierce  v.  Gladwin  County,  136 

William  Henning  Co.,  Mich.  425   625 


103  N.  E.  R.  530 730      Pierie  v.  Philadelphia,  139  Pa. 

Williams,    36    N.    Y.  573    445 


441     395       Pike  v.  Carter,  3  Bing.  78 .  .  .    503 


INDEX   OF    CASES 


823 


[REFERENCES 

Pilie  v.  New  Orleans,  19  La. 

Ann.  274    446 

Pine    v.    Huber    Mfg.    Co.,    83 

Ind.    121    509 

Pleuler  v.  State,  11  Neb.  547.  238 
Plumley,  Ex  parte,  156  Mass. 

236;    30  N.   E.   1127;    15  L. 

R.   A.   839 729 

Plumley  v.  Massachusetts,  155 

U.  S.  461.280,  282,  295,  299,  729 
Plymouth  v.  Painter,  17  Conn. 

585   372,  374 

Plymouth   Township   v.  Klug, 

145  N.  W.  130 580 

Poindexter    v.   Greenhow,    114 

U.   S.    270 498 

Pole  v.  Minnehaha  Co.,  5  Dak. 

T.   129    439 

Polinsky  v.  People,  73  N.  Y. 

65    84,  737 

Pooler  v.  Reed,  73  Me.  129 479 

Potts  v.  Breen,  167  111.  67 

51,  76,  78,  139,  635 

Poughkeepsie    v.     Wiltse,    36 

Hun,  270    446 

Powell  v.  Commonwealth,  114 

Pa.  265   728 

Newburgh,    19   Johns, 

284    438 

Pennsylvania,   127  U. 

S.  678   728 

State,  69  Ala.  10 238 

Tuttle,  3  N.  Y.  396.  .    670 

Prather  v.  Hart,  17  Neb.  598 .  477 
Pressman  v.  Dickson  City,  13 

Pa.  Super.  Ct.  236 522 

Preston  v.  Bacon,  4  Conn.  471  446 
Prince  v.  Skillin,  71  Me.  361.  469 
Pritchard   v.   Morgantown,   36 

S.  E.  353 616 

Privett  v.  Brickford,  26  Kas. 

52    415 

Prosser  v.  Coots,  50  Mich.  262  507 
Provincetown    v.    Smith,    120 

Mass.  96 610 


ARE   TO   PAGES] 

Pruden  v.  Love,  67  Ga.  160. . .  364 
Publishing   Co.   v.   Payne,    30 

Wash.  L.  R.  339 79,  167 

Pulaski  County  v.  Lincoln,  9 

Ark.  320    394,  395 

Pulaski   County   v.   Somerset, 

-      98  S.  W.   1022 621 

Pullman  Co.  v.  Krauss,  40  So. 

398    596 

Purcell  v.  Parks,  82  111.  346.  .  442 
Pursel  v.  State,  111  Ind.  519.  423 
Pusey  v.  Meade,  64  Ky.  217. .  .  638 
Putnam  v.  Langley,  133  Mass. 

204    399 


Queen  v.  Atlanta,  59  Ga.  318.  452 
Quin  v.  Donovan,  85  111.  194.   550 

R 

Rae  v.  Flint,  16  N.  W.  887...  592 
Raleigh  v.  Goschen,  1  Ch.  73 .  .  505 
Rassmussen   v.  Idaho,  181   U. 

S.  198    326,  594 

Rassmussen  v.  United  States, 

197  U.  S.  516 195 

Raymond  v.  Fish,  51  Conn.  80 

210,  500 

Reardon  v.  St.  Louis,  30  Mo. 

555  517 

Reed  v.  People,  1  Park.  Cr. 

481  83,  103 

Reetz   v.  Michigan,   188  U.  S. 

505    189,   198,  665 

Reg.  v.  Anderson,   2  A.   &  E. 

740    534 

Blizzard,  L.  R.  2  Q.  B. 

55 ..   483 

Green,  2  A.  &  E.  460.    534 

James,  2  Den.  Cr.  Cas. 

1     355 

Richmond,    11    W.   R. 

65     414 


824 


INDEX   OF    CASES 


[REFERENCES   ARE   TO   PAGES] 


Reid   v.   Colorado,    187    U.    S. 

137   326,  740,  748 

Reif  v.  Page,  55  Wis.  496 446 

Reilly  v.  Mayor,  48  N.  Y.  Sup. 


Robertson  v.  Sichel,  127  U.  S. 

507    506,  515 

Robbins    v.    Taxing    District, 

120   U.   S.  489 281 


Ct.    274 


Reiter  v.  State,  51  Ohio,  74. .  .   483 
Rex  v.  Bedford  Level,  3  East. 

356    372 

Beeston,  3   T.  R.    (D. 


490      Robinson,   Ex   parte,   30   Tex. 


App.   493    224 

Robinson  v.  Hamilton,   14  N. 

W.  202    135,  559,  597 

Robinson  v.  Rohr,  73  Wis.  436 

500,  516 


.  E.)  592 394     

Boyles,  2  Stra.  836..    534      Rochester    v.    Gutherlett,    133 


-Grimes,  5  Burr.  2599 .    376 


N.  Y.  Supp.  541 714 


-Hebden,  Andrews,  389  376      Rochester  White  Lead  Co.  v. 


184 


-Hughes,  5  B.  &  C.  886  480 

-Leyland,    3    M.    &    S. 

, 481 


Rochester,  3  N.  Y.  463 522 

Rockaway  Township  v.  Morris 
County,  52  Atl.  373 629 


-Lisle,    Andrews,    163.    376      Rogers   v.   Buffalo,   123   N.  Y. 


Mayor,  4  Doug.  14. .  .   481 

Mayor,  5  Term.  R.  (D. 

&  E.)    66   376 

Tizzard,    9    B.    &    C. 


418    355,  413 

Vantandillo,   4   M.   & 


S.    73    643 

Whitaker,   9   B.  &   C. 

648     394 

Reynolds  v.  Mt.  Vernon,  164 

N.  Y.  Supp.  592 431 

Reynolds  v.  Ossining,  92  N.  Y. 

Supp.  954 101 

Rhode  Island  v.  Massachusetts, 

12    Pet.    657 708 

Rhodes  v.  Iowa,  170  U.  S.  412.   294 
Richards,  Ex  parte,  3  Q.  B.  D. 

368    533 

Richmond  v.  Long's  Admr.,  17 

Grat.  375 517,  618 

Ripley  v.  Gifford,  11  Iowa,  367  451       Ruggles  v.  Washington  Co.  3 
Ritchie  v.  People,  155  111.   98  Mo.  501   511 

172,  756      Runion  v.  Latimer,  6  Rich.  (S. 

Ritchie   v.   Wayman,    244   111.  C.)   126 377,  478,  540 

509   172,  759      Runkel  v.  Winemiller,  4  H.  & 

River  Rendering  Co.  v.  Behr,  McH.  (Md.)  429 355 

77  Mo.  91 181,  341,  713       Runnells  v.  State,  1  Miss  146.    486 


173 113,  114,  401 

Rohn   v.    Osmun,    106    JST.    W. 

967    628 

Roper    v.    McWorter,    77    Va. 

214    499 

Ross  v.  Williamson,  44  Ga.  501  474 
Rounds   v.   Mumford,   2   R.   I. 

154 364,  500 

Rowland    v.    Greencastle,    157 

Ind.    707     335 

Royall  v.  Virginia,  116  U.  S. 

572    660 

Ruan  v.  Mahaska  County,  137 

N.  W.  1003 626 

Ruch  v.  New  Orleans,  43  La. 

Ann.  275 156 

Rucker   v.    Supervisors,   7   W. 

Va.  661 442 

Rude  v.  St.  Marie,  99  N.  W. 

460    642 


INDEX   OF    CASES 


825 


[references 

s 

Sadler  v.  Langham,  34  Ala.  311  81 
Sage  v.  Fifield,  68  Wis.  546.  538 
St.  Charles  v.  Rogers,  49  Mo. 

530     539 

St.  Clair  v.  Cox,  106  U.  S.  356  196 
St.  Clair  v.  People,  85  111.  396  365 
St.   Johns    v.    Supervisors,    70 

N.  W.   131 400,  629 

St.  Louis  v.  Amel,  139  S.  W. 

434   736,  742 

Boffinger,  19  Mo.  13.    136 

Clemens,  43  Mo.  395.   209 

Liessing,  190  Mo.  464  739 

St.    Louis    Consolidated    Coal 

Co.  v.  Illinois,  185  U.  S.  203  600 
St.  Louis,  I.  M.  &  S.  Ry.  Co. 

v.  McWhirter,  229  U.  S.  265  760 
St.   Paul  v.   Colter,   12   Minn. 

41    340,  656 

St.  Paul  v.  Gilfillan,  36  Minn. 

298    224 

St.   Taurmany   Water  Works 

Co.  v.  New  Orleans  Water 

Works  Co.,  120  U.  S.  64 .  .  .  687 
Salem  v.  Eastern  R.  R.  Co.,  98 

Mass.  431 212,  500,  513 

Saline  Co.  v.  Anderson,  20  Kas. 

298    379 

Salisbury     Commissioners     v. 

Powe,  51  N.  C.   134 596 

Sallinger  v.  Smith,  192  Mass. 

317    610 

San  Antonio  v.  White,  57  S. 

W.  R.  858    518 

San    Chung,   In   re,    105    Pac. 

609    764 

Sanborn  v.  Neal,  4  Minn.  126  510 
Saterlee     v.     Matthewson,     2 

Peters,  413    73 

Savage  v.  Jones,  225  U.  S. 

501  278 

Savannah  v.  Mulligan,  95  Ga. 

323    203,  234 


ARE   TO   PAGES] 

Sawyer    v.     State    Board    of 

Health,  125  Mass.  195 210 

Sawyer    v.    Wapello    County, 

133   N.  W.  104 612,  619 

Sayre  Burrough  of,  v.  Phillips, 

148  Pa.  482 661 

Schaezlein    v.    Cabaniss,     135 

Cal.  466 75,  766 

Sehenck  v.  Peay,  1  Woolw.  (U. 

S.)   175   395 

Schmidt  v.  Stearns  County,  34 

Minn.   112    620 

Schoen  Bros.  v.  Atlanta,  97  Ga. 

697;  33  L.  R.  A.  804..  181,  713 
Schollenberger  v.  Pennsyl- 
vania, 171  U.  S.  1 

282,  288,  294,  728 

Schultz  v.  State,  76  Atl.  592. .  714 
Scott  v.  Detroit  Y.  M.  C.  A.,  1 

Doug.    (Mich.)    119 395 

Scott  v.  Ring,  29  Minn.  398 . .  472 
Seaman    v.    Patten,   2    Caines 

(N.   Y.)    312 500 

Sears  v.  Cottrell,  5  Mich.  251 

190,  217 

Sears  v.  Gallatin   County,  40 

L.  R.  A.  405;  20  Mont.  462 

156,    561,  597 

Seavey  v.  Preble,  64  Me.  120 

499,  595,  612 

Seifert  v.  Brooklyn,  101  N.  Y. 

136    523 

Semple  v.  Vieksburg,  62  Miss. 

63    522,  523 

Sentell  v.  New  Orleans,  etc.,  R. 

R.  Co.,  166  U.  S.  698.  .  .201,  236 
Seymour    v.    Almond,    75    Ga. 

112    537 

Seymour   v.  United   States,   2 

App.  D.  C.  240 204,  365 

Shannon  v.  Portsmouth,  54  N. 

H.   183    491 

Sharp  v.  Teese,  9  N.  J.  L.  352.  525 
Shattuck    v.    State,    51    Miss. 

575    486 


826 


INDEX   OF    CASES 


[REFERENCES 

Sheehan    v.    Gleeson,    46    Mo. 

100   361,  670 

Sheldon  v.  Payne,  7  N.  Y.  458  515 
Shell  v.  Cousins,  77  Va.   328 

479,  538 

Shepard  v.   Seattle,   109   Pac. 

1067    136 

Sherburne  v.  Yuba  County,  21 

Cal.  113  517 

Shipman  v.  State  Live  Stock 

Commissioners,     115     Mich. 

488    513 

Shivers  v.  Newton,  45  N.  J.  L. 

469   179,  746 

Shoemaker   v.  United  States, 

147  U.  S.  282 381 

Shreveport  Traction  Co.  v. 

Shreveport,  122  La.  Ann.  1; 

47  South  40 157 

Shrewsbury,  In  re,  9  Coke,  50 .  474 
Sidway  v.  Commissioners,  120 

111.    496    446 

Sievers  v.  San  Francisco,  115 

Cal.  648 524,  528 

Sikes  v.  Hatfield,  13  Gray,  347  436 
Silz  v.  Hesterberg,  211  U.  S.    . 

31    280 

Simon  v.  Hoboken,  52  N.  J.  L. 

367    376 

Simpson  v.  Shepard,  (U.S.)  33 

Sup.  Ct.  729 590 

Sings  v.  Joliet,  86  N.  E.  663 

618,  771 

Sinking  Fund  Cases,  90  U.  S. 

761    166 

Skaneateles  etc.  Water  Co.  v. 

Skaneateles,  161  N.  Y.  154; 

s.  c.  184  U.  S.  354 687 

Sloan  v.  Peoria,  106  111.  App. 

151    400,  431 

Smiley  v.  McDonald,  42  Neb. 

5;  27  L.  R.  A.  540 714 

Smith,  Ex  parte,  8  S.  C.  495.  472 
Smith,  In  re,  146  N.  Y.  68.. 

634,  635 


ARE   TO   PAGES] 

Smith  v.  Ames,  169  U.  S.  466.   196 

Baker,  20  Fed.  709 .  .   645 

Baker,  14  Pa.  C.  C.  65  212 

Colby,   67    Me.    169.. 

504,  515 

Dyer,    1    Call.     (Va.) 

562    385 

Evans,  53  S.  E.  589. .    176 

Examiners  of  Feeble- 
minded (N.  J.  Sup.  Ct.  Nov. 

18,  1913)    787 

Hobb,  45  S.  E.  963..    622 

Irish,  55  N.  Y.  S.  837 

214,  224 

Lowe,  121  Fed.  753..   594 

Lynch,  29  Ohio,  261..   374 

Maryland,  18  How.  71  747 

'    — Mayor  of  New  York, 

37  N.  Y.  518 379,  453 

Nashville,     88     Tenn. 

464   174,  689 

New  York,  66  N.  Y. 

295    524 

St.    Louis    &    South- 
western Ry.  Co.,  181  U.  S. 

248 135,  158,  216,  326,  594 

State,  115  Ind.  611..   201 

State  Board  of  Med- 
ical Examiners,  Iowa,  117  N. 

W.  R.  1116 198 

Waterbury,   54   Conn. 

174    440 

Whitney,    116    U.    S. 

167    537,  538 

Sniffen    v.    Mayor,    4    Sandf. 

193    437 

Snowden,    Ex   parte,    12    Cal. 

App.   521    333 

Snyder  v.  Gordon,  46  Hun,  538  644 
Society    for    Propagating   the 
Gospel    v.    New    Haven,    8 

Wheat.  464   248 

Soens  v.  Racine,  10  Wis.  271.  395 
Southern  Ry.  Co.  v.  State,  125 
Ga.  287  695 


INDEX  OF   CASES 


827 


[references 
Southern    Ry.    Co.    v.   United 

States,  222  U.  S.  20 307 

Spa  v.  Ely,  8  Hun,  256 645 

Spear  v.  Robinson,  29  Me.  531.  414 
Spearman  v.  Texarkana,  24  S. 

W.  883  400 

Speed    v.    Crawford,    3    Met. 

(Ky.)    207    380,  419 

Spinney,  Ex  parte,  10  Nev.  323 

665,  667 

Spokes   v.  Banbury  Board  of 

Health,  L.  R.  1  Eq.  42 713 

Spring    v.    Hyde    Park,    137 

Mass.  554 206,  605,  608 

Springfield  v.  Spence,  39  Ohio, 

665    700 

Stadler    v.   Detroit,    13    Mich. 

346 393,   424,   473 

Stanchfield    v.    Newton,     142 

Mass.  110    523 

Standard  Stock  &  Food  Co.  v. 

Wright,  225  U.  S.  540 278 

Stanley   v.    Monnet,    34    Kas. 

703    540 

Staples  v.  Plymouth  County, 

17  N.  W.  569 607 

State    v.    Addington,    77    Mo. 

110    729 

Allen,  21  Ind.  516 

387,  388,  473,  477,  478 

Allen,  5  Kas.  213.534,  535 

Ailing,   12  Ohio,  16..    376 

Alt,  26  Mo.  App.  673 .   419 

Armeno,  72  Atl.  216. .   676 

Bailey,   33  N.  W.  R. 

778     421 

Baird,  47  Mo.  301 477 

Ball,  34  Ohio,  194...      76 

Bank,  45  Mo.  528 509 

Barbour,  53  Conn.  76 

385,  399 

Bayonne,  44  N.  J.  L. 

114    661 

Beacham,  34  S.  E.  477  371 

Beil,  157  Ind.  25 635 


ARE   TO   PAGES] 

State  v.  Berg,  50  Ind.  496...   472 

Berg,  70  N.  W.  347. .    591 

Black,  22  Minn.  336.  .  425 

Blumenthal,  125  S.  W. 

R.  1188 674 

Boal,  46  Mo.  528 535 

Board,  17  Atl.  112...  489 

Board  of  Education, 

81  N.  E.  568 635 

Board    of    Education, 

21   Utah,  401 635 

Board  of  Health,  49  N. 

J.  L.  349 388 

Board        of        Public 

Lands,  7  Neb.  42 419 

Boecker,  56  Mo.  17. . . 

482,  483 

Boone,  95  N.  E.  924; 

84  Ohio,  346 549,  560 

Boucher,    3    N.    Dak. 

389    no 

Bowen,  8  S.  C.  400.  . .    533 

Brewer,  59  Ala.  130..   436 

Brewster,  44  Ohio,  589  471 

Brinkerhoff,    66    Tex. 

45     479 

Brown,  128  N.  W.  294  773 

Brown,  38  Ohio,  344.   424 

Bryce,    7    Ohio,   Part. 

II,  82    478 

Bulkeley,     61     Conn. 

287    375,    376 

Burdge,  70  N.  W.  R. 

347;  95  Wis.  390;  37  L.  R. 

A.   157 76,  635,  636 

Butts,  9  L.  R.  A.  725.   577 

Buttz,   9S.C.  156.413,  479 

Call  (N.  C),  28  S.  E. 

517 666 

Campbell,    64    N.    H. 

402   172,  235 

Cantler,  33  Minn.  69.   661 

Capers,   37    La.    Ann. 

747     491 

Carrol,  38  Conn.  449. . 

373,  374 


828 


INDEX   OF    CASES 


[REFERENCES 

State  v.  Chapin,  110  Ind.  272. 

421,  441 

Chatburn,     63     Iowa, 

569    484 

Churchill,  41  Mo.  41.   473 

Clark,  54  Mo.  17 ... .   342 

Clarke,  3  Nev.  566..    414 

Cole,  220  Mo.  697.  .  . 

635,  636 

Collier,    72   Mo.    13..    534 

Collingswood  Sewer- 
age  Co.,   89   Atl.  525 706 

Columbia,  16  S.  C.  412  537 

Colvig,  15  Oreg.  57 .  . .   473 

Comptroller    General, 

9  S.  C.  259 452,  479 

Commissioners,         31 

Ohio,    451    365 

County  Court,  51  Mo. 

350    538 

Crescent        Creamery 

Co.,  83  Minn.  284;  54  L.  R. 

A.   466    742 

Dahl,  65  Wise.  510..    532 

Davis,  44  Mo.  129 .. .   469 

DeGress,  53   Tex.  387 

358,  413 

Dellwood,  33  La.  Ann. 

1229    479 

Denny,  118  Ind.  449.   380 

Deny,  171  Ind.  18.. 

197,   202 

Draper,  45  Mo.  355..   413 

Duckworth,      51      Pa. 

456    594 

Duffy,  7  Nev.  349 .. . 

172,    191 

Duncan,   50   So.  265.   585 

— Dupaquier,      46      La. 

Ann.   577....  172,   177,   180,  744 

Feilan,  26  Pac.  R.  75  786 

Ferguson.    33    N.    H. 

424    337 

Fischer.  52  Mo.  174 . .    340 

— Fitts,  49  Ala.  402...    482 


ARE   TO   PAGES] 

State    v.     Fleming,    7    Hum- 
phreys,   152     74 

French,    141   Ind.   618  383 

Fortenbury,   56   Miss. 

540 

-Fulkerson,  10  Mo.  681  421 
-Gaines,   2   Lea,   316..   455 


286 


Gardner,   54   Ohio,  24  375 

George,   23   Fla.   585.   410 

George,     22     Oregon, 

142    383 

Gibson,  36  Ind.  389 .  . 

172,  191 

Goff,  15  R.  I.  505 ...  .   479 

Goss,  69  Me.  22 454 

Graham,  13  Kas.  136 

533,   534,   535 


Graham,  26  La.  Ann. 

568    478 

Gravett,  65  Ohio,  289  199 

Gregory,  83  Mo.  123.    668 

Griffin,  69  N.  H.  1 . .  .    175 


Hadley,  27  Ind.  496.   474 

Hairston,  63  N.  C.  451 

172,  191 

Hamilton  Co.,  7  Ohio, 

134    385 

Hammer,  42  N.  J.  L. 

435    533 

Hansen,  63  Ind.  155 . .      76 

Harrington,     68     Vt. 

622     655 

Harrison,  113  Ind.  434 

375,  392 

Hastings,  10  Wis.  518  509 

Hastings,  15  Wis.  75  463 

Hathaway,    115    Mo. 

36    665,   666 

Hauss,  43  Ind.  105..   482 

Hay,   126  N.   C.   999; 

49  L.  R.  A.  588 

632,  634,  636,  646 

Herron,   24   La.    Ann. 

432    491 

Higgs,  38  Ohio,  199 . .   651 


INDEX   OF    CASES 


829 


[REFERENCES 

State  v.  Hill,  126  N.  C.  1139; 

50  L.  R.  A.  473 714 

Hindley,  121  Pa.  447  103 

Hixon,  27  Ark.  398..    533 

Holcomn,     68     Iowa, 

107    340 

Holden,   14  Utah,  71; 

37  L.  R.  A.   103 756 

Holmes,  38  N.  H.  225  238 

Hopkins,  10  Ohio,  509  426 

Howe,  25  Ohio,  588 . . 

376,  421,  425 

Hoyt,   2    Oreg.   246..  400 

Hudson  County,  44  N. 

J.    L.    388 440 

Hyde,  121  Ind.  20...   380 

Hyman,  57  Atl.  6 763 

Jacobs,  17  Ohio,  143 . . 

376,    533 

Jersey  City,  25  N.  J. 

L.   536    491 

Johnson,  17  Ark.  407  388 

Johnson,  26  Ark.  281.  535 

—Jones,  19  Ind.  516..  467 

Kearns,  47  Ohio,  566.   413 

Kennon,  7  Ohio,  546 .  . 

351,    380 

Kilroy,  86  Ind.  118..   405 

Kirby,  120  Iowa,  26 . .   583 

Kirk,  44  Ind.  401 358 

Knoxville,  12  Lea.  146  204 

Kohnke,   31   So.   45..    384 

Kuhl,  51  N.  J.  L.  191.   393 

Leach,  60  Mo.  58.474,  476 

Lincoln,  4  Neb.  260..   483 

Lingo,  26  Mo.  496 491 

Long,  76  N.  C.  254.  .   454 

Long  Branch,  42  N.  J. 

L.    364     172 

Love,  39  N.  J.  L.  14 

399,  424 

Lupton,  64  Mo.  415 . . 

490,    535 

Lutz,    136   Mo.    633..    668 

Lylies,   1   McCord    (S. 

C),  238    387 


ARE   TO   PAGES] 

State  v.  Mahner,  43  La.  Ann. 

496    173 

Main,  69  Conn.  123 . .    343 

Mar  low,  15  Ohio,  114  532 

Marshall,  64  N.  H.  549  729 

Martin,   42    N.   J.   L. 

479    533 

Massillon,     24     Ohio 

Cir.   Ct.   249 384 

Mayor,  4  Neb.   260..   481 

McCollister,    11   Ohio, 

46    380 

McDowell,     19     Neb. 

442    442 

McEntyre,  3  Ire.   (N. 

C.)    171    540 

McGoveny,  92  Mo.  328  420 

McMahon  (Minn.),  72 

N.  W.  R.   79 654,  662 

McMillen,  23  Neb.  385  410 

McNeely,  24  La.  Ann. 

19    388 

Meehan,  45   N.  J.  L. 

189    385,    401 

Milwaukee,  121  N.  W. 

658    738 

Moore,   19  Mo.  369.. 

507,    515 

Moore,   50   Neb.   88 .  .   462 

Morris,    47    La.    Ann. 

1660   181,  713 

Morse,  80  Atl.  189 . . 

84,    694 

Mott,  61  Md.  287;  48 

Atl.   105 217,   224 

Muller,  48  Oreg.  252.    759 

Murphy,  130  Mo.  10.    157 

Murray,  28   Wise.  96  405 

Myers,     42     W.     Va. 

822;    35  L.  R.  A.  844 729 

Nashville,  15  Lea.  697 

337,    446 

Nelson,  60  Minn.  166  172 

New    Orleans,  27    So. 

572;   52  La.  Ann.  1263 629 


830 


INDEX   OP    CASES 


[REFERENCES   ARE   TO   PAGES] 


State  v.  Normand,  76  N.  H. 

541    643 

North,  42  Conn.  79..  533 

Noyes,  30  N.  H.  279.  175 

Ocean  Grove  C.  M.  A., 

55  N.  J.  L.  507 173,  661 

Olinger,  72  N.  W.  R. 


441  445 

Olson,  144  N.  W.  R. 

661  749 

Orange,  50  N.  J.  L. 


389  173,  661 

Orr,  68  Conn.  101;  34 


L.  R.  A.  279 340,  714 

Patterson,  34  N.  J.  L. 

163  361,  468,  670 

Pearcy,  44  Mo.  159 . .   425 

Peck,  30  La.  Ann.  280  473 

Peele,  124  Ind.  515 . . 

388,    399 

Phillips,  79  Me.  506.  . 

385,  399 

Police  Commissioners, 


16  Mo.  App.  48 491 

Police    Commissioner, 

40   N.   J.  L.   175 490 

Porter,    7    Ind.   204..    473 

Porter,  113  Ind.  79.. 

395,  397 

Pritchard,  36  N.  J.  L. 

101   114,  487 

Rackowski,     86     Atl. 

606    631 

Railroad  Co.,  40  Minn. 

267     '. 279 

Ring,    29    Minn.   78 .  .    389 

Robinson,    161    S.  W. 

1169    679 

Rodman,      58      Minn. 

393     201 

St.  Paul,  M.  &  R.  R. 


State   v.   Schumaker,    27   La. 

Ann.  332    491 

Seay,  64  Mo.  89 426 

Seigel,  60  Minn.  507.   172 

Sharply,  31  Wash.  191  675 

Shaw,  64  Me.  263 .  361,  670 

Shorrock,     55     Wash. 


Co.   98   Minn.   380 157 

St.  Louis,  207  Mo.  354  409 

Schlenker,    112    Iowa, 

642;   51  L.  R.  A.  347 742 


208    634,  639 

Sinks,   42   Ohio,  345.   651 

Smith,  22  Minn.  218.   395 

Smith,  57   So.  426...   737 

Smith,  135  S.  W.  465  752 

Smith,  14  Wis.  497..   405 

Smith,  48  Vt.  266...    533 

Sneed,  9  Baxt.  272..    540 

— Snyder,     No.     19,418 


Sup.    Ct.   La.    1912 81 

Somers,  96  N.  C.  467  441 

Speyer,  67  Vt.  502 .. .   583 

Stanley,  66  N.  C.  59.   357 

State  Medical  Exam- 
ining Board,  32  Minn.  324.  .  666 
Steele,  57  Tex.  200.. 

437,  627 

Steers,  44  Mo.  223 .  .   473 

Stein,  13  Neb.   529..   535 

Taft,  118  N.  C.  1190. . 

172,  175 

Taylor,  108  N.  C.  196  374 

Taylor,  15  Ohio,  137.   421 

Tipton,   109   Ind.   75.    534 

Tolan,  33  N.  J.  L.  195  533 

Trenton,  63   Atl.   897 

227,    609 

Trenton,  50  N.  J.  L. 

331     422 

Tudor,  5  Day,   329..   533 

Vail,  53  Mo.  97 535 

Valle,  41  Mo.  29 358 

Wadhams,    64    Minn. 

318    385 

Walker,  75  Neb.  177; 

106  N.  W.  427 102,  444 

Webber,  38  Minn.  397  365 

Wilkesville,    20    Ohio. 

288    395 


INDEX   OP   CASES 


831 


[refeeences 
State  v.  Wilmington,  3  Harr. 

(Del.)   294    368 

Wilson,  30  Kas.  661 . .   532 

Wiltz,  11  La.  Ann.  439 

470,  486,  488 

Wordin,  14  Atl.  801. . 

559,  597 

Yopp,  97  N.  C.  478 . . 

159,   363 

Young,  84  Mo.  90 365 

Young,  29  Minn.  551 

75,  332 


Zeno,  79  Minn.  80;  81 

N.   W.   R.   748 675 

Zimmerman,  86  Minn. 


353;  58  L.  R.  A.  78;  90  N. 
W.    783    635 

State  Board  of  Dental  Exam- 
iners v.  People,  123  111.  227  668 

State  Board  of  Health  v. 
Board  of  Trustees,  110  Pac. 
137;   143  Cal.  658 634 

Greenville,  86  Ohio,  1  591 


St.  Johnsbury,  73  Atl. 

581    84 

Standard  Oil  Co.,  107 


La.  713    210 

State  Centre  v.  Barrenstein,  66 
Iowa,   249    656 

State  ex  rel,  Bayles  v.  New- 
ton, 50  N.  J.  L.  549 729 

ex  rel,  Waterbury  v. 

Newton,  50  N.  J.  L.  534 729 

ex   rel,   Weideman   v. 


Horgan,  55  Minn.  183;  56 

N.  W.  688  729 

Stein  v.  Vienville  Water  Sup- 
ply Co.,  141  U.  S.  67 688 

Stephens  v.  Allen,  44  S.  W.  R. 
386    443 

. Stephenson    v.     Wal- 

den,   24   Iowa,   84 465 

Stern   v.   People,   102   111.   540  488 

Sternberger  v.  Cape  Fear  &  Y. 
V.  R.  R.  29  S.  C.  510 279 

Sterry  v.  Clifton,  9  C.  B.  110  465 


ARE   TO   PAGES] 

Steubenville  v.  Culp,  38  Ohio, 

18     436,  453 

Stevens     v.     Muskegon,     111 

Mich.  72    522 

Stewart  v.  New  Orleans,  9  La. 

Ann.  461    517 

Stiffler    v.    Delaware,    1    Ind. 

App.  368    446 

Stock    v.    Boston,    149    Mass. 

410    ..521,  522,  690 

Stockton  v.  Newark,  42  N.  J. 

Eq.  531    239 

Stockwell  v.  Genesee  County, 

56  Mich.   221 446 

Stockwell  v.  Township  Board, 

22   Mich.   341 489 

Stoddard  v.  Saratoga  Springs, 

127  N.   Y.   261 522,  523 

Stoltenberg,    Ex    parte,     132 

Pac.    841     653,  762 

Stone  v.  Heath,  179  Mass.  385 

215,   224,    694,  706 

Mississippi,  101  U.  S. 

814    157 

Small,  54  Vt.  498...    537 

Wetmore,  42  Ga.  601  539 

Stotler  v.  Rochelle,   109  Pac. 

788   226,  609 

Stout  v.  Ennis,  28  Kas.  706.  .   367 
Stroye    v.    Gladwin     County, 

136  Mich.  425 625 

Stuhr  v.  Hoboken,  47  N.  J.  L. 

147    443 

Stuhr  v.  Curran,  15  Vroom, 

181  379 

Stull  v.  Reber,  215  Pa.  156 

. 634,  637 

Sturgis  v.  Spofford,  45  N.  Y. 

446   380,  381 

Suffield      v.      Hathaway,      44 

Conn.    521    174,  689 

Sullivan  v.  Oneida,  61  111.  242 

180,   201 

Sully    v.    American    National 

Bank,  178  U.  S.  289 196 


832 


INDEX   OF    CASES 


[references  are  to  pages] 


Summers   v.  Board,   103   Ind. 

262    516 

Summit  Township  v.  Jackson, 

117  N.  W.  545 605 

Sumner  v.  Beeler,  50  Ind.  341  498 
Sumner     v.     Philadelphia,     9 

Phila.  408   517 

Supervisors  v.  Auditor  Gen- 
eral,  27  Mich.   165 539 

Supervisors  v.  Stinson,  4  Hill, 

136    379 

Surocco  v.  Geary,  3  Cal.  69 . .  206 
Sutton  v.  Sutton,  1  Russell  & 

Mylne,  663    248 

Suydam    v.   Keys,    13    Johns, 

444    503 

Swan  v.  Buck,  40  Miss.  268 . .  445 
Swarth  v.  People,  109  111.  621  662 


Tabor  v.  Berrien  County,  120 

N.  W.  588    .., 447,  612 

Taft    v.    Adams,    128    Mass. 

213    421 

Tappan  v.  Gray,  9  Paige,  507  539 
Taunton  v.  Taylor,  116  Mass. 

254    211,  384 

Taylor  v.  Adair  County,  119 

Ky.   374    578,  671 

Austin,  32  Minn.  247  522 

Backham,    178    U.    S. 

548 197 

City     of    Owen'sboro, 

98  Ky.  271 -602 

Tearney  v.  Smith,  86  111.  391 .   504 
Tenement     House     Dept.     v. 

Katie   Moeschen,    85    N.   Y. 

S.  1148;  Affirmed,  72  N.  E. 

321;    Affirmed,    203    U.    S. 

583    761 

Territory  v.  Ah  Chong,  17  Ha. 

331 764 

Territory     v.     Lockwood,     3 

Wall.  236    533 

Territory  v.  Norris,  1  Ore.  107  436 


Texter   v.   Baltimore    &   Ohio 

R.  P.,  59  Md.  63 37 

Thayer    v.    Boston,    19    Pick. 

511    520 

Thomas    v.   Burrus,   23   Miss. 

550   385,  399 

Ingham     Supervisors, 

142  Mich.   319 585 

Mason,  20  S.  E.  580. .   628 

Mason,  39  W.Va.  526  623 

Richmond,    12    Wall. 


349   337,  525 

R.  R.  Co.,   101   U.  S. 

71    525 

State  Board  of  Health, 

79   S.  E.  725 672 

Thompson  v.  Carroll,  22  How. 

242    337 

Thompson   v.   Hazen,   25   Me. 

104    666 

Thompson  v.  Holt,  52  Ala.  491  500 
Thompson   v.   Kimbrough,    57 

S.   W.   328 227,  609 

Thomson  v.  Tracy,  60  N.  Y. 

31    537 

Throop  v.  Langdon,  40  Mich. 

673   357,  533 

Thorp  v.  Rutland  R.  Co.,  27 

Vt.   140    235 

Thurlow   v.   Massachusetts,   5 

How.   504    269 

Thurston  v.  Fairman,  9  Hun, 

584   465 

Tippits    v.    Walker,    4    Mass. 

595    509 

Tissot    v.    Great    South.    Tel. 

Co.,  39  La.  Ann.  996 224 

Toledo  v.  Cone,  41  Ohio,  149. .    521 
Tollefsen  v.  Ottawa,  81  N.  E. 

283    607 

Towaliga  Falls  Power  Co.  v. 

Sims,  65   S.  E.  844.... 642,  648 
Trabue   v.  Todd  County,  125 

Ky.  809  627 

Tracy  v.  Swartwout,  10  Pet. 

80   504,  515 


INDEX   OF    CASES 


833 


[references 
Train   v.  Boston  Disinfecting 

Co.,   144  Mass.   523 203,  600 

Trenton    v.    Clayton,    50    Mo. 

App.  535    661 

Trenton  v.  Hutchinson,  39  N. 

J.   Eq.   218 102 

Trigg  v.  State,  49  Tex.  645 . .  486 
Triplett  v.  Gill,  7  J.  J.  Marsh, 

444    467 

Trowbridge  v.  Tupper,  96  N. 

E.   1096    531 

Tucker  v.  Aiken,  7  N.  H.  113 .  374 
Tucker  v.  Burt,  115  N.  W.  722  632 
Turnipseed     v.     Hudson,     50 

Miss.   429    477 

Turpin  v.  Booth,  56  Cal.  65..  356 
Tweedy   v.   Fremont   County, 

68   N.   W.   921 623 

Twenty    Per    Cent    Cases,    13 

Wall.   568    358 

Twining   v.  New  Jersey,  211 

U.   S.   78 191 

Twyman's.     Administrator     v. 

Frankfort,   117  Ky.  518 ..  .   602 

u 

Underwood  v.  Green,  42  N.  Y. 

140    181,  207,  713 

Union  Church  v.  Saunders,  1 

Houst.    (Del.)     100 355 

United    States    v.    Arredondo, 

6  Peters,  691 123 

Bevans,  3  Wheat.  336  310 

Boutwell,     3     Macar- 

thur,   (D.  C.)    172 540 

Boyer,  85  Fed.  425..    301 

Clough,  55  U.  S.  373 

445,   446 

Commissioners,    5 

Wall.   563    360 

Cruikshank,   1  Woods, 

308;  Affirmed,  92  U.  S.  542  192 

Douglas,  19  D.  C.  99 

135,    139,    159,  360 

Eaton,  144  U.  S.  677     79 


ARE    TO    PAGES] 

United  States  v.  Eliason,   16 

Peters,  291    81,  125 

Fisher,  109  U.  S.  143  437 

Flanders,  112  U.S.  88 

438,  453 

Fox,    Federal    Cases, 

No.  15155 286,  291,  295 

Furlong,     5      Wheat. 

134    310 

Germaine,    99    U.    S. 

508    350,  357 

Green,   53  Fed.  769..   482 

Grush,  5  Mason,  290.    310 

Harris,  106  U.  S.  629  192 

Holmes,  5  Wheat.  412  310 

Johnson,  177  Fed.   313  271 

Johnson,  221      U.      S. 

488    271 

Ju    Toy,    198    U.    S. 

253    193,  194,  218 

Le    Baron,    19    How. 

73    387,  388 

Lee,  106  U.  S.  196.. 

496,  498 

Mitchell,    109    U.    S. 

146    437 

Mouat,  124  U.  S.  303  350 

Ross,  1  Gallison,  624  310 

.    Saunders,    120    U.    S. 

126    452 

• Schurz,  102  U.  S.  378  360 

Seaman,  17  How.  225  360 

Sing  Tuck,  194  U.  S. 

161,  reversing  128  Fed.  592  194 
Smith,  124  U.  S.  525 

350,  367 

Smith,    1    Bond,    (U. 

S.)    68 453 

Williams,    194   U.    S. 

279    193,-195,  275 

Wiltberger,  5  Wheat. 

76    310 

Wong  Kim  Ark,   169 

U.  S.  649 .._._  195 


834 


INDEX  OF   CASES 


[REFERENCES 

United  States  v.  Yamaska, 
(C.  C.  A.)  100  Fed.  404 194 

Upjohn  v.  Richland,  46  Mich. 
542    538 

Uren  v.  Walsh,  57  Wis.  98. .  .   516 

V 

Valentine  v.  Englewood,  76  N. 

J.  L.  509 503,  517 

Vall§  v.  Shaffer,  81  Pac.  1028  384 
Vance  v.  Vandercook,  170  U. 

S.  438   282,  289 

Vandercook  v.   Williams,  106 

Ind.   345    452 

Van  Orsdall  v.  Hazard,  3  Hill, 

243     478,  481 

Van  Schaick  v.  Sigel,  60  How. . . 

(N.  Y.)    Pr.   122 507 

Van  Wormer  v.  Mayor  of  Al- 
bany,  15   Wend.   562 513 

Vaughn    v.    Congdon,    56   Vt. 

Ill    503 

Verdon  v.  Bowman,  97  N.  W. 

229   502,  515 

Vicksburg  v.  Vicksburg  Water 

Works  Co.,  202   U.   S.  453 

520,   685 

Viemeister  v.  White,  179  N. 

Y.  235    634 

Villavaso  v.  Barthet,  39  La. 

Ann.  247   239 

Virginia,  Ex  parte,  100  U.  S. 

339   188,  191 

Vogel  v.  State,  107  Ind.  374. .  414 
Voelker  v.  Chicago  Elc.  R.  R. 

Co.,  116  Fed.  867 695 

Voight  v.  Wright,   141  U.  S. 

62    ....327 

W 

Walcott  v.  Walcott,  19  Vt.  37  395 
Walker  v.  Boone  County,  97 
N.   W.    1077 623 


ARE   TO   PAGES] 

Walker  v.  Cook,  129  Mass.  578 

436,  464 

Ferrill,  58  Ga.  512..   425 

Henderson  County,  65 

S.  W.  15 627 

Jameson,  140  Ind.  591 

176,    181,    343,  714 

McMahn,      75      Neb. 

179;  106  N.  W.  427...  102,  444 
Sauvinet,  92  U.  S.  90  186 


Wall  v.  Trumbull,  16  Mich. 
228    499,  500 

Walla  Walla  v.  Walla  Walla 
Water  Co.,  172  U.  S.  1 686 

Walla  Walla  Water  Co.  v. 
Walla  Walla,  60  Fed.  957.  .   689 

Waller  v.  Wood,  101  Ind.  138.   142 

Wamesit  Power  Co.  v.  Allen, 
120  Mass.  352    499 

AVard  Lumber  Co.  v.  Hender- 
son White  Mfg.  Co.,  107  Va. 
626    196 

Ware  v.  Hylton,  3  Dall.  270.  .   248 

Waring  v.  Mayor,  75  U.  S. 
110    287 

Warner  v.  People,  2  Denio, 
272    470 

Warner  v.  Stebbins,  111  Iowa 
86;  82  N.  W.  457.  .226,  603,  605 

Washington-Oregon  Corpora- 
tion v.  Chehalis,  202  Fed. 
501    687 

Waterbury  v.  Newton,  50  N. 
J.   L.    534 729 

Waterman  v.  New  York,  7 
Daly,  439    446 

Watson  v.  Maryland,  105  Md. 
651    173,  665 

Watuppe  Reservoir  v.  Mack- 
enzie, 132  Mass.  71 212 

Waugh  v.  Chauncey,  13  Cal. 
11    123 

Waye  v.  Thompson,  L.  R.  15 
Q.  B.   D.  342 513 


INDEX  OF   CASES 


835 


[references  are  to  pages] 


Weaver  v.  Devendorf,  3  Denic, 
117    499 

Webb  v.  McCauley,  4  Bush.  10  463 

Weeks  v.  Texarkana,  50  Ark. 
81    440 

Weideman  v.  Horgan,  55 
Minn.  183;  56  N.  W.  688..    729 

Weigand  v.  District  of  Colum- 
bia, 22  Appeals  D.  C.  559 
177,   742 

Weil  v.  Record,  24  N.  J.  Eq. 
169    172 

Weimer  v.  Bunbury,  30  Mich. 

201    192 

Weis  v.  Madison,  75  Ind.  241 .  700 
Weldman    v.    New    York,    84 

App.  Div.   321 522 

Weller  v.  State,  53  Ohio  77; 

40  N.  E.  1001. 730 

Welsh  v.  Stowell,  2  Douglas, 

332    235 

Wentick  v.  Passiac  Co.,  66  N. 

J.  L.  65 526 

West  v.  State,  1  Wis.  209. .  .  554 
Westberg  v.  Kansas  City,  64 

Mo.  493    453 

Western  College  v.  Cleveland, 

12    Ohio,   375 517 

Western  Savings  Fund  Soci- 
ety v.  Philadelphia,  31  Pa. 

183   520,  689 

Westervelt  v.  Gregg,  12  N.  Y. 

202    190 

Wheelock     v.     McDowell,     20 

Neb.  160    442 

Whidden  v.  Cheever,  69  N.  H. 

142;    44   Atl.   902;    76   Am. 

St.  R.  154 499,  502,  595 

White  v.  Carroll,  42  N.  Y.  161  668 
Doesburg,     16     Mich. 

133    535 

Levant,  78  Me.  568..  436 

Mayor,  4  E.  D.  Smith, 

563    453 


White   v.  Polk  Co.,  17  Iowa, 

413    446,  452 

San  Antonio,  60  S.  W. 

427    370 

Whiteside  v.  People,  26  Wend. 

634;   reversing,  23  Wend.  9 

396,   399 

Whiteside    v.    United    States, 

93   U.  S.   247 509 

Whitfield  v.  Carrolton,  50  Mo. 

App.    98    521,  690 

Whitfield  v.  Paris,  84  Tex.  431  516 
Whiting,  In  re,  1  Ed.  Sel.  Ca&. 

(N.   Y.)    498 368 

Whiting  v.  Carique,  2  Hill.  93  415 
Whitman  v.  Hubbell,  20  Abb. 

N.  C.   385 538 

Whitney  v.  Von  Buskirk,  40 

N.  J.  L.  463 385 

Wilcox  v.  Jackson,  13  Peters, 

498    125 

People,   90   111.   186.. 

486,  487 

Rodman,  46  Mo.  322.   421 

Smith,  5  Wend.  231.    372 

Wilcoxon     v.      Andrews,     66 

Mich.  553    452 

Wilkes  v.  Dinesman,  7  How. 

89    499 

Wilkinson  v.  Albany,  28  N.  H. 

9    638 

Willard     v.     Killingworth,     8 

Conn.  247    339 

Willemin  v.  Bateson,  63  Mich. 

309    452 

Williams    v.    School    District, 

12  Met.    (Mass.)    497 395 

Williams  v.  Weaver,  75  N.  Y. 

30    503 

Williamsburg  v.  Lord,  51  Me. 

599 395 

Wilson,  In  re,  32  Minn.  145 

539,  661 

Wilson  v.  Alabama  G.   S.  R. 

Co.,  77  Miss.  714;  28  S.  R. 

567    396,   577,  578 


836 


INDEX  OP   CASES 


[REFERENCES   ARE   TO   PAGES] 


Wilson  v.  Blackbird  Greek  Co., 

2  Peters,  245 158,  317 

Wilson  v.  Sanitary  District  of 

Chicago,  133  111.  443 171 

Wing  v.  Glick,  56  Iowa,  473 . .  509 
Winthrop  v.  Farrer,  11  Allen, 

398    531 

Withers  v.  Buckley,  20  How. 

84 188 

Withey  v.   Bloem,   163   Mich. 

419 758 

Withington     v.     Harvard,     8 

Cush.  68    371 

Withnell  v.  Gartham,  6  T.  R. 

(D.  &  E.)   388 394 

Wolsey,  In  re,  95  N.  Y.  135. .  369 
Wong  Wing  v.  United  States, 

163  U.   S.  228 ,.    195 

Wong    Wai     v.     Williamson, 

(C.  C.)   103  Fed.  1 

577,   583,  640 

Wood  v.  Cutter,  138  Mass.  149 

385,  387 

Woodruff  v.  Parham,  8  Wall. 

123    281 

Woods  v.  Cottrell,  55  W.  Va. 

476    ]  202 

Woolsey     v.     Tompkins,     23 

Wend.   324    396 

Wortham  v.  Grayson  Co.,  13 

Bush.  53    436 

Wreford  v.  People,   14  Mich. 

41    175 


Wright  v.  Adams,  45  Tex.  134 

421,  471 

Wright   v.   Nagle,   101    U.   S. 

791    686 

Wright  v.  State,  88  Md.  436; 

41  Atl.  795 728 

Writ  v.  Boston,  9  Cush.  233 . .  700 
Wurtz  v.  Hoagland,  114  U.  S. 

606    209 


Yandell    v.    Madison    County, 

32  So.  918;  81  Miss.  288. .  .  428 
Yates  v.  Milwaukee,  10  Wall. 

497   217,  224 

Yick  Wo  v.  Hopkins,   118  U. 

S.  356   217,  765 

Young  v.  Blaekhawk  County, 

66  Iowa,  460 331,   362,  671 

Young  v.  Ashland,  125  S.  W. 

R.  737    489 

Youngblood     v.     Sexton,     32 

Mich.  406 651 

Yonkley  v.  State,  27  Ind.  236 

467,    477,    478,  482 


Zeigler  v.  S.  &  N.  Ala.  R.  R. 

Co.,   58  Ala.   594 190 

Zimmermann     v.     Cheboygan 

County,  95  N.  W.  535.  .431,  626 


GENERAL   INDEX 


[references  are  to  pages] 
A 

Actions — 

Civil    . 529 

Criminal    529 

Alienum  non  laedat  154 

Animal  hosts   29 

Ankylostomiasis    3,  715 

Antitoxin    13 

Production  of   22 

Action   of    22,  23 

Dangers  of    • 27,  575,  639 

Appointment,  see  Officer. 

Argentina,  Constitution  of 65 

Authority  versus  policy   303 

B 

Bacillus,  defined 19 

Bacteria — 

Defined  and  classified   19 

Changes  in  virulence  of 24 

Entrance  into  body 27 

Bacterial  problems  in  commerce 10 

Bacterins 23,  24 

Barbers,  License  of   674 

Boards  of  Health 100 

Rules  of   83,  139,  210 

Belgium,  Constitution  and  government  of 61 

''Black  Death"  in  England 2 

Brazil,  Constitution  of 62,  65 

837 


838  GENERAL  INDEX 

[REFERENCES  ARE  TO  pages] 

C 

Cairo,  Malaria  in 35 

Canada,  Union  of  powers  in 61 

Cattle  fever 93,  135,  215,  308,  326,  594 

Carroll,  James 566 

Celery,  Cause  of  typhoid  fever 18 

Centralized  government    35 

Certiorari   539 

Does  not  determine  title  to  office 376 

Tests  regularity  of  removal 490 

City- 
Authority — 

May  be  general,  specific,  or  implied 337 

For  legislation   72,  331 

Executive,  depends  upon  legislative 343 

Corporation    329 

Ordinance — 

Must  not  contravene  common  rights 339 

Must  not  exceed  limits  of  statutes 334 

Must  not  exceed  limits  of  city 335 

Not  unreasonable  if  authorized  by  state 343 

Relationship  to  state  government 328 

State  may  do  that  which  would  be  considered  un- 
reasonable for  city  342 

Civil  Service    415 

Coccus,  defined   19 

Colombia,  Constitution  and  government 63 

Commerce,  depending  upon  health  conditions 2 

Bacterial  problems  in 10 

Commerce,  Interstate — 

Authority  versus  policy   303 

Includes  things  transported,  and  means  of  transpor- 
tation       268 

Includes  persons  275 

Meaning  of 278 

National  authority  over   267 


GENERAL    INDEX  839 

[REFERENCES  ARE  TO  pages] 
Commerce,  Interstate — Continued 
National  authority  over 

Control  over  manufacturers 13,  301 

Control  over  transportation,  extent  of 305 

Pure  foods  and  drugs 269 

Purity  of  interstate  waters 307 

Original  package,  what  is 284 

State  stoppage  of  navigation 317 

White  slave  traffic   276 

Congressional  usurpation  of  power 68 

Constitutions  compared — 

Argentina 65 

Belgium    61 

Brazil   62,  65 

Colombia 63 

England  44,  62 

France  61 

Germany 61 

Italy 61 

Latin  America 63 

Mexico  65 

United  States    44 

Compared  with  common  law  and  statutes 45 

Consumption,  considered  in  awarding  care  of  children . .  648 

D 

Dead  animals 181,  340,  713 

Discretion  (See  also  under  Officers.) 

Courts,  feeble  to  resist  acts  under 161 

May  not  be  coerced 160 

Disease  carriers — 

Insect 28 

Animal 29 

Human 31 

Diphtheria — 

Antagonized  by  lactic  acid  bacillus 26 

Antitoxin  for 13,  22,  23,  27,  575,  639 


840  general  index 

[references  are  to  pages] 

Dourine — 

Inoculation  for   25 

Spread  by  flies 237 

Due  Process  of  Law  87,  184  to  219 

By  executive   206 

By  legislation   189 

Fifth  Amendment  restricts  nation ;  Fourteenth,  state  188 

Health  administration  under 207 

Hearing — 

Right  to  a 203 

Executive    218 

Jurisdiction  under  217 

Nuisance  per  se  not  protected 203 

Origin  of   184 

Property  created  contrary  to  law  not  protected ....   202 

Inherently  harmful,  not  protected  202 

Protects — 

Corporations    196 

Persons    193 

Property   197 

Protects  against  state,  not  against  fellow  citizens. . .   191 
Summary  action  may  be  legal 214 

E 

Epidemiology,  definition  of 19 

Eugenics — 

A  positive  science , . . . .  777 

Antenuptial  examinations 782 

Caste  universal  777 

Definition  of   767 

Disease  not  hereditary 780 

Galton's  law  of  regression 791 

Legislation  should  be  based  on  biologic  facts 793 

Like  characters  in  parents  and  children  not  neces- 
sarily hereditary 779 

Mendel 's  law  778 

Reasonable  restrictions 788 


GENERAL  INDEX  841 

[REFERENCES  ARE  TO  pages] 

Eugenics — Continued 

Sterilization   785 

Decisions  on 786 

Versus  low  infant  mortality 792 

Exclusion  acts 193 

State    196 

Executive — 

Appeal  in  Department 122 

Appointments  by  Governor   109 

Assumption  of  judicial  power 78 

Assumption  of  legislative  power 76 

Boards  100 

Departmental  adjudication 143 

Determination  by,  limited  to  matters  of  fact 274 

Disadvantages  through  enactment 168 

Duty  to  advise  legislation 125 

Duty  to  give  legislative  information 78 

Efficiency  increased  by  definiteness  of  enactment . . .   166 

Emergency  76 

Excess  of  power 122 

Experts,  paid  by  salary 116,  433 

Efficiency  under  military  organization 127 

Jurisdiction    142 

National 96 

One  man  in  charge  of  each  department 115 

Oneness  of  98 

Orders  of,  law  ? 78 

Orders  of,  limitations 81 

Organization  of 106 

Organization  of  state  department  of  health 119 

Organization,  principles  in 109 

Paid  by  salary,  not  by  fees. . 117 

Responsibility,  individual  107 

Responsibility  must  be  tangible 119 

Semi-legislative  duties 92 

State    . . 97 

Subjection  of  trained  specialist  to  untrained  official.   104 


842  GENERAL  INDEX 

[REFERENCES  ARE  TO  pages] 

Executive — C&ntinued 

Quasi-judicial  combination  69 

Quasi-legislative  combination  69 

Expediency,  Doctrine  of,  dangerous 47 

P 

Filaria,  carried  by  culex  mosquito 28 

Flea,  carries  bacillus  pestis 28 

Flies- 
Buried,  crawl  to  air 169 

Spread  disease 237 

Foods  and  drugs — 

Adjudication  under  national  act 145 

Dealer  must  know  quality 722 

Guarantee    723,  725 

Misbranding   721 

Oleomargarine  266,  292,  728 

Original  package,  Definition  of 284 

Poisonous   748 

Purity  of,  Commercial  and  sanitary  standards 718 

Purity  of,  Commercial  motive  in  legislation 727 

Purity  of  milk 742 

' ' Serial  numbers"    723 

Standard  fixed  by  legislation 720 

France,  Constitution  and  government  of 61 

Fumigation  kills  insects  and  rats 14,  30 

Use  in  disinfection 169,  611 

G 

Garbage — 

A  municipal  problem  336,  710 

City  collection  of 715 

Exclusive  contracts  for  176 

Property  rights  in 181,  205,  710 

German  empire,  Constitution  and  government 61 

Germ  origin  of  disease,  proofs  of 20,  21 


GENERAL    INDEX  843 
[REFERENCES  ARE  TO  pages] 

Government — 

A  confederation  not  a  nation 64 

Anatomy,  and  physiology  of 56 

Centralized    35 

Individual  supremacy  of  branches 131 

No  liberty  with  powers  united 59 

Separation  of  powers  Anglican 60 

Three  branches  of,  importance 56,  58 

Union  of  powers  in  Europe 61 

Usurpation  of  powers 68 

Union  of  powers,  Tool  of  Tyranny 58 

Governmental  supervision  of  manufacture  of  antitoxin, 

etc 13 

Ground  squirrels  and  plague 29 

H 

Health  administration,  a  cause  for  municipal  organiza- 
tion      5 

Health  administration,  a  problem  of  probabilities 29 

Hookworm  disease   715 

Hydrophobia   25 


Illegal  acts  sometimes  sanctioned 46 

Purity  of  intention,  no  excuse  for 50 

Illegal  statutes 93 

Industrial  Conditions — 

Bakeries  764 

Buildings    761 

Emery  wheels   763 

Hours  of  labor 173,  755 

Increased  importance  of 754 

Laundries  •  764 

Legislation  should  be  based  on  proven  facts 750 

Night  factory  work  by  women 173 

Regulation  should  be  by  legislation 766 


844  GENERAL  INDEX 

[REFERENCES  ARE  TO  PAGES ] 

Industrial  Conditions — Continued 

Special  occupations 763 

Sweatshops   763 

Tobacco  trade   765 

Infantile  paralysis   19 

Infectious  diseases — 

Disinfection  for    610 

Expense  for 618 

Hospital  for 604 

May  be  a  nuisance  225 

In  household,  must  be  considered  in  awarding  care 

of  children 468 

Methods  for  restricting 30 

Removal  of  cases  601 

Reports  of   33 

Injunction    537 

Insect  hosts    .. 28,  575 

Institutions 43 

Injurious 52 

Italy- 
Constitution  and  government  of 61 

Treaty  with  244 

J 

Java,  Government  of 63 

Judges  as  executives 70 . 

Judicial  interpretation  of  law 46,  129 

Judicial  power — 

Executive  assumption  of 78 

Over  executives 136 

Not  appellate  over 137 

Over  legislation    133 

Judiciary,  a  governmental  balance  wheel 129 

K 

Koch 's  postulates   20 


GENERAL  INDEX  845 

[REFERENCES  ARE  TO  pages] 

L 

Lactic  acid  bacillus  antagonistic  to  diseases 26 

Lactic  spray  as  a  preventive  of  disease .  , 31,  574 

Latin  America,  Government  in 63 

Law — 

Common   40 

Basis  of  liberty 42 

Compared  with  constitutions  and  statutes ...  42,  45 

Force  of   53 

Interpretation  of  by  courts 39,  46,  129  et  seq. 

Must  be  impartial 191 

Should  be  observed   52 

Supremacy  of  in  America 39 

Legal  methods  change  with  science 11 

Legislation — 

"By  the  people" 74 

Crazy-quilt    XII,    94 

Definite  in  effect 91 

Mechanics  of  lawmaking XIII 

Necessity  for,  in  public  health  work 89 

Should  be  based  on  facts,  not  theories 170 

Legislative — 

Action  must  be  reasonable 215 

Branch  of  government 70 

Limitations    87 

Municipal  power  limited 72 

Judicial  action  prohibited 73 

Power,  cannot  be  delegated 76 

Power,  executive  assumption  of 76 

Leprosy 584 

Liability  of — 
City- 
Determined  by  duties  of  officer 495 

For  municipal  duties 495,  519 

For  public  duties  515 

For  typhoid  in  water 646 


846  general  index 

[references  are  to  pages] 
Liability  of — Continued 
City— 

For  water  supplied 690 

Not  in  performance  of  governmental  duties. . . .  495 

On  contracts   525 

Employees    514 

Hospital  to  nurse  contracting  disease 645 

Individuals  for  communicating  disease 643 

Milk  dealer,  for  disease  from  milk 647 

Officers — 

Distinction   between   discretionary   and   minis- 
terial action  498 

As  to  contracts 508,  511 

Health  officers,  not  ordinarily  liable . .  511,  595,  609 

Liable  for  acts  not  covered  by  duty 505 

Liable  for  exceeding  authority 503 

Liable  when  not  complying  with  law 496 

Not  liable  when  within  discretion 499 

Not  ordinarily  liable  on  implied  authority  for 

contract    510 

Not  protected  by  unconstitutional  statute 497 

Superior  may  be  liable  for  torts  of  subordinate .  507 
Superior    not    generally    liable    for    torts    of 

subordinates    506 

Kailroad  Corporation  for  disease   contracted  from 

employees   645 

Respondeat  superior 528 

State,  not  liable  to  citizens 494 

Liberty — 

Based  on  Common  law 42 

Constitutional    38 

Development  of,  Anglican 36 

Individual,  necessitates  restraint 36 

Influenced  by  social  and  economic  conditions 37 

None  with  governmental  powers  united 59 

Personal,  dependent  upon  observance  of  law 53 

True,  is  communal 36 


'     general  index  847 

[references  are  to  pages] 
License  under  police  power — 

Barbers  674 

Based  on  idea  of  danger  to  the  community 651 

Distinguished  from  under  taxing  power 650 

Does  not  abrogate  power  of  control 237 

How  granted  660 

Permits 652 

Practice  of  medicine  662 

"Medical  reciprocity" 669 

What  is  practice  of  medicine 673 

Revocation  of   676 

Size  of  fee  655 

M 

Malaria — 

A  nuisance 12 

At  Cairo 35 

Cooperative  campaign  against 3 

Dependent  on  mosquitoes 32 

Mathematical  probabilities  of 29 

Not  due  to  miasm 6 

Petrolization  for 35 

Plasmodium  of,  development 21 

Prevention  of , 14 

Relationship  to  commerce 2 

Malfeasance   474 

Mandamus    536,  539 

Does  not  create  a  duty 540 

May  compel  provision  for  expense  of  health  depart- 
ment    628 

May  compel  service  of  officer  de  facto 377 

May  not  compel  discretionary  action . .  160,  364,  672,  707 

May  compel  ministerial  action 214,  359,  539 

Manufacture,  federal  control  over 301 

Manure,  a  nuisance 221 

Meat  inspection 216,  326 

Medical  licenses,  continued  control  over 198,  213 


848  GENERAL  INDEX 

[REFERENCES  ARE  TO  PAGES ] 

Medical  practice — 

Differs  from  health  protection 15-18 

What  is  ...673 

Mendel 's  law 778 

Meningitis — 

Germ  of,  antagonized  by  lactic  acid  bacillus 26 

Mexico,  Constitution  and  government  of 65 

Milk- 
Bacteria  in   26 

Multiplication  of 7,  8,  10 

Composition  of 177,  742 

Confiscation  and  destruction  of 178,  746 

Fee  for  license 656 

Inspection  of 744 

License  and  control  of  business. . .  .7-11,  658,  731  et  seq. 

Lactic  fermentation   26 

Pasteurization  of 10,  658,  739 

Reasonableness  of  regulations 15 

Regulation  of  business,  a  proper  use  of  police  power  172 

Relationship  to  disease 155 

Tubercular  236 

Tuberculin  tests  of  cattle 178,  738 

"Millions"  fish,  Antimalarial  use  of 6 

Mosquito — 

Anopheline    3,  28,  32 

Culex    1 28 

Extermination  of 32 

Stegomyia    6,  28 

Municipality  (See  also  City)— 

Authority  to  create  offices  and  make  appointments . .  401 
Legislative  power  limited 72,  331 


N 


National  authority — 

Enforcement  of  state  acts 313 

Over  commerce   267 


GENERAL  INDEX  849 
[REFERENCES  ARE  TO  PAGES ] 

National  authority— Continued 
Over — 

Manufacture    301 

Public  places  264 

Purity  of  interstate  waters 307 

States    , 267 

Territories    262 

Vital  statistics  245,  543 

Sanitary    243-314 

Specified  or  implied  powers  260 

Nuisance    220-241 

Abatement  of 174,  178,  212,  232 

A  question  of  fact = . . . .  224 

Authority  for  abatement  not  for  construction 241 

Common  law  or  statutory 227 

Destruction  not  always  permissible 235 

Dead  animals 181,  340,  713 

Disease  a  nuisance  12 

Diseased  cattle  a  nuisance 181 

Executive  determination  of 230 

Harmful    220 

Hearing  after  abatement 234 

Hospital , . .  225 

In  esse   221 

In  posse   221 

Judicial  determination  of  231 

Legislative  determination  of,  best 240 

Liability  for  destruction  of 511,  518 

Manure   221 

Perse 221 

Not  protected  by  due  process  of  law 203 

Prohibited,  abated,  or  regulated 174,  231 

Sewer   522 

Statutory  determination  of 231 

Summary  abatement  of 233 


850  GENERAL   INDEX 

[REFERENCES  ARE  TO  PAGES] 

0 

Officers 348-493 

Acceptance  of  office 416 

Appointment    379 

By  board,  majority  action 394 

By  board  or  municipality 384 

By  board,  sufficiency  of  notice 396 

By  board,  vote  need  not  show  quorum. . . 396 

By  governor 109 

By  nonofficial  body 381 

By  outgoing  officer 400 

By  same  branch  of  government 380 

By  self  400 

By  two  or  more  bodies  398 

Eligibility  for  403 

Tested  by  quo  warranto 415 

Implies  written  commission 385 

Made    during    recess   must    be    submitted    for 

confirmation 392 

Power  for,  not  inherent 110 

Of  two  or  more  for  unspecified  class  or  district  402 

Power  must  be  given  by  law 383 

Power  once  used  is  exhausted 399 

Requiring  confirmation  made  during  recess. . . .  389 

Restrictions  in 112 

Time   for    388 

To  fill  vacancy 426 

Vote  must  show  approval 399 

Bond,  original,  covers  extra  duties 456 

Civil  service 415 

Classification  according  to  service 358 

Commission,  best  evidence  of  appointment 387 

Compensation — 

Abolition  of  office  stops 455 

Cannot  pay  self 456 


GENERAL  INDEX  851 

[REFERENCES  ARE  TO  pages] 

Officers — Continued 

Compensation 

Change  of  salary  during  term 439 

Depends  on  actual  service 453 

Determined  by  legislation 435 

Dissatisfied  officer  may  resign 455 

Effect  of  increased  duties 444 

Extra-official  duties  451 

Fixed  after  appointment 442 

For  two  offices   452 

Importance  of  in  Health  Service 431 

Inadequate  salary  expensive 433 

Office  not  a  contract  427 

Payment  of  substitute  for  extra  services 447 

Salary  not  subject  to  garnishee 465 

Salary  unearned  not  assignable 462 

Second  term  presupposes  old  rate 455 

De  facto 372 

Cannot  enforce  payment  for  services 378 

May  be  punished  for  negligence  or  misfeasance  378 

No  office  de  facto 374 

Not  ousted  by  mandamus 377 

De  Jure  372 

May    collect    for    services    when    barred    from 
office   454 

Determination  of  title  to  office 376 

Discretionary  action,  implies  use  of  judgment 360 

Cannot  be  coerced 364 

Not  arbitrary 363 

Not  subject  to  purchase 360 

Discretionary  power  cannot  be  delegated 360 

Eligibility — 

Citizenship   403 

Educational  qualifications 407 

Legislative  restrictions    409 

Natural  qualifications 406 

Tested  by  quo  warranto 415 


852  GENERAL  INDEX 

[REFERENCES  ARE  TO  pages] 

Officers — Continued 

Holding  two  offices 412 

Honorary  office 357 

Incompatible  office   479 

Liability  of,  see  Liability — 

Lucrative  office   357 

Ministerial  or  discretionary  duties 359 

Municipal    authority    to    create    offices    and    make 

appointments  401 

Office  and  employment  distinguished 348 

Offices  not  dependent  on  statutes 354 

Of  health,  appointed  not  elected 403 

Public  or  private   367 

Removal,  power  of 114 

Sanitary,  are  state  officers 370 

State  officers  proper 371 

State  or  municipal 369 

Term — 

Beginning  of  426 

Definition  of  418 

Fixed  by  constitution 420 

Holding  over  425 

No  term,  office  held  at  pleasure 418 

Termination  of  official  relation — 

Abandonment  of  office 473 

Abolition  of  office  468 

Acceptance  of  incompatible  office 479 

Death 466 

Expiration  of  term  .' 470 

Failure  to  qualify 473 

Impeachment  491 

Malfeasance    ,. . 474 

Nonuser  as  cause  of  forfeiture. 477 

Refusal  to  perform  the  duties  of  office 478 

Removal,  conditions  for,  fixed  in  constitution..  485 
Removal,   power   for,    incidental   to    power   to 

appoint   483 


GENERAL    INDEX  853 

[REFERENCES  ARE  TO  pages] 
Officers — Continued 

Termination  of  official  relation 

Removal,  power  to,  does  not  include  power  to 

suspend    491 

Removal,  statutory  requirements  for 487 

Removal,  what  is  not 490 

Resignation    480 

Taking  receipt  from  successor 417 

When  officer  may  not  hold  over 472 

Time  for  which  appointed 393 

Title  not  tested  collaterally 376 

Taking  office  417 

Oleomargarine  266,  292,  728 

Opsonic  index   23 

Original  package,  definition  of 284 


Panama  Canal,  Sanitation  of 127 

Phagocytes  23 

Phagocytosis    23 

Plague — 

In  England   2 

Reasonable  regulations  33,  586 

Restriction  of   33 

Plasmodia   21 

Police  power 149-183 

Action  under  must  be  reasonable 176 

Cannot  be  alienated    157 

Contrasted  with  eminent  domain   205 

Dangerous  power  158 

Defined   151 

Distinguished  from  criminal  punishment 153 

Distinguished  from  police   150 

Expression  of  social,  economic,  and  political  condi- 
tions       154 

Extreme  use  of 178 


854  general  index 

[references  are  to  pages] 

Police  power — Continued 

Extreme  use  of,  must  be  necessary 182 

Health  authority  derived  from 88,  149 

Includes  continued  control 198 

Judicial  determination  under 163 

Property  seized  under 178 

Public  health  includes  what 171 

Regulation  versus  prohibition 169 

Resides  in  the   states 243 

Statutes  dependent  upon 156 

Statutory  action  under 161 

Superior  to  commerce   158 

Superior  to  individual  rights 156 

Summary  executive  action 158 

Variety  of  methods  under 166 

Poliomyelitis,  germ  of 19 

Power  yielded  because  claimed  is  not  sanctioned 81 

Protozoa — 

Cause  of  disease 20 

Changes  in  virulence  of 24 

Denned    19 

Public  Health- 
Activities  based  on  idea  of  nuisance 89 

Has  over-ridden  restriction 47 

Limitations  of  action 171 

Necessity  for  legislation 89 

Powers  too  great 52 

Powers  and  limitations,  nation,  state,  and  city.  .243-245 

Service,  increases  property  value 18 

Purity  of  intention  no  excuse  for  illegal  act 50 

Q 

Quarantine — 

A  defensive  procedure 574 

Authority  of  diagnosis 583 


GENERAL  INDEX  855 
[REFERENCES  ARE  TO  pages] 

Quarantine — Continued 

Control  of  disease  carriers 640 

Diseases  subject  to 581 

Disinfection    610 

Methods  of   169 

Expense  of 618 

Inspection  of 598 

Right  of  entry 600 

Legality  of   162,  164 

Meaning  of 571 

Mechanics  of 572 

Morbidity  reports  for 597 

Not  dependable  upon  statute  576 

Origin  of 570 

Pest  houses    604 

Regulations    139 

Relationship  to  commerce 593 

Relative  powers  for,  nation,  state,  city 586 

Removal  of  cases 601 

Quinine,  as  preventive  of  malaria 30 

Quo  warranto    532 

Determines  title  to  office 377 

Not  necessary  to  oust  officer  accepting  second  office . .  479 

Tests  eligibility  to  office 415 

Will  oust  officer  not  confirmed 394 


R 


Rats,  carriers  of  plague .29,  640 

Reasonableness  of  action 14 

Recovery  of  books  and  property 536 

Replevin    536 

Reports  of  infectious  disease,  reasonableness  of 33 

Rocky  Mountain  spotted  fever 575 


856  GENERAL  INDEX 

[references  ARE  TO  pages] 

S 

Sanitation — 

Conflict  between  state  and  national  authority 317 

Cuba 3 

Governmental  versus  private 5 

Madeira-Mamore  railroad,  Brazil 4 

Methods,  legality  of — 

Changed  by  economic  conditions 7 

Changed  by  scientific  advancement 11 

Municipal  authority  over 328-345 

Municipal  control  over,  limited  by  nature  and  law. .  9,  335 

National  authority  over 243-314 

Panama  Canal  Zone 3 

State  authority    314-328 

Is  exclusive    323 

May  override  federal  authority 324 

Recognized  by  federal  government 316 

Suez  Canal 3 

United  Fruit  Co 4 

School,  Medical  Inspection  of 767 

Authority  of  health  department 769 

Injurious  effects  of  school  life 767 

Normally  educational 773 

Medical  problems  in  education  771 

School  Nurse   775 

Second-hand  clothing 175 

Sewage — 

A  municipal  problem 696 

Jurisdiction  over    706 

Relation  of  to  natural  drainage 709 

Sewer  a  nuisance 700 

Liability  for 522 

Sheep  scab 593,  642 

Slaughterhouses    239 

Sleeping-sickness 28 

Small-pox — 

Germ  of 19 


GENERAL  INDEX  857 
[REFERENCES  ARE  TO  PAGES ] 

Small-pox — Continued 

Liability  on   644 

Vaccination  against   25 

Sovereignty  of  individual  in  United  States 35 

Scarlet  fever   19 

Spirilla,  denned    19 

State  authority — 

General  sanitation   314 

Meat  inspection 326 

Statutes — 

Authority  of  state  must  be  evident  in  act 327 

Not  conclusive  as  to  authority  325 

Sterilization,  see  Eugenics — 


Ticks,  carriers  of  Rocky  Mountain  fever,  sheep  growing 

for  extermination  of 575 

Toxins — 

Production  of   22 

Transportation,  Federal  control  over 305 

Treaties,  classified 248 

Treaty-making  power — 

Legislative  authority  under  249 

Resides  in  nation  246 

Treaty  with  Italy 244 

Tropical  anaemia  (See  Ankylostomiasis.) — 

Relationship  to  commerce 2 

Tropical  diseases 566 

Trypansome — 

Of  dourine  25 

Of  sleeping  sickness 28 

Tsetse  fly    28 

Tuberculin  tests  of  cattle 178,  738 

Tuberculosis — 

Relationship  to  milk 236 

Types  of  bacteria  24 


858  GENERAL  INDEX 

[REFERENCES  ARE  TO  pages] 
Typhoid  Fever — 

Carriers  of    31 

From  celery 18 

From  milk   8,  647,  659 

From  water 330,  646,  691 


U 


"Uncertainties  of  the  law"  necessary  for  advancement. .  13 

Union  of  powers — 

Antagonistic  to  individual  rights 59 

In  European  governments 61 


V 


Vaccination  24,  632 

A  form  of  quarantine 574 

Bacterial    23,  639 

Production  of  virus  25 

Vital  Statistics — 

An  index  of  healthfulness 542 

As  evidence   255 

Authority  for  reports  not  authority  for  prevention .  .  258 

Authority  under  census 256 

Morbidity  reports   555,  597 

National  or  state  control  over 245,  543 

Necessity  for  completeness  of  returns 544 

Not  essentially  health  measures 258 

Physician,  confidential  relationships  of 555 

Physician's  record  as  testimony 550 

Records  as  legal  evidence  546 

Reports  of  infectious  diseases 597 

State  organization  for 544 

Tentative  morbidity  reports 560 


GENERAL  INDEX  859 
[REFERENCES  ARE  TO  pages] 

W 

Water — 

Duty  of  city  to  provide 654 

Interstate    307 

Liability  of  municipality  for 690 

Municipal  plants 689 

Private  franchise    686 

Relation  of  problems  of  waste  and  water  supply ....  681 

State  and  municipal  supervision 683,  694 

Trains  and  boats,  supply  on 695 

White  slave  traffic 276 

Writ  of  prohibition 537 


Yellow  Fever 6 

Discovery  of  cause   566 

Changed  methods  of  quarantine 30 


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